U.S. Supreme Court Weems v. United States, 217
U.S. 349 (1910) Weems v. United
States No. 20 Argued November 30 December 1, 1909 Decided May 2,19I0 217
U.S. 349 ERROR TO THE SUPREME COURT OF THE
PHILIPPINE ISLANDS Syllabus A paramount governmental authority may make use of subordinate
governmental instruments without the creation of a distinct legal
entity, as is the case of the United States and the United States
Government of the Philippine Islands.

															Under the Philippine Criminal Code of Procedure, a public
offense need not necessarily be described in the information in
exact words of the statute, but only in ordinary and concise
language, so as to enable a person of common understanding to
understand the charge and the court to pronounce judgment.

															A charge describing the accused as a public official of the
United States Government of the Philippine Islands and his offense
as falsifying a public and official document in this case held
sufficient. Carrington v. United States, 208 U. S.
1 , distinguished.

															The provision in Rule 35 that this court may, at its option,
notice a plain error not assigned is not a rigid rule controlled by
precedent, but confers a discretion exercisable at any time,
regardless of what may have been done at other times; the court has
less reluctance to disregard prior examples in criminal, than in
civil, cases, and will act under the Rule when rights
constitutional in nature or secured under a bill of rights are
asserted.

															Although not raised in the courts below, this court will, under
Rule 35, consider an assignment of error made for the first time in
this court that a sentence is cruel and unusual within the meaning
of the Eighth Amendment to the Constitution or of the similar
provision in the Philippine bill of rights.

															In interpreting the Eighth Amendment, it will be regarded as a
precept of justice that punishment for crime should be graduated
and proportioned to the offense.

															A provision of the Philippine bill of rights taken from the
Constitution of the United States must have the same meaning, and
so held that the provision prohibiting cruel and unusual
punishments must be interpreted as the Eighth Amendment has
been.

															What constitutes a cruel and unusual punishment prohibited by
the Eighth Amendment has not been exactly defined, and no case as
heretofore occurred in this court calling for an exhaustive
definition. Page 217 U. S. 350 While legislation, both statutory and constitutional, is enacted
to remedy existing evils, its general language is not necessarily
so confined, and it may be capable of wider application than to the
mischief giving it birth.

															The Eighth Amendment is progressive, and does not prohibit
merely the cruel and unusual punishments known in 1689 and 1787,
but may acquire wider meaning as public opinion becomes enlightened
by humane justice, and a similar provision in the Philippine bill
of rights applies to long-continued imprisonment with accessories
disproportionate to the offense.

															While the judiciary may not oppose its power to that of the
legislature in defining crimes and their punishment as to
expediency, it is the duty of the judiciary to determine whether
the legislature has contravened a constitutional prohibition and in
that respect, and, for that purpose, the power of the judiciary is
superior to that of the legislature.

															It is within the power of this court to declare a statute of the
Penal Code defining a crime and fixing its punishment void as
violative of the provision in the Philippine bill of rights
prohibiting cruel and unusual punishment.

															In determining whether a punishment is cruel and unusual as
fixed by the Philippine Commission, this court will consider the
punishment of the same or similar crimes in other parts of the
United States, as exhibiting the difference between power
unrestrained and that exercised under the spirit of constitutional
limitations formed to establish justice.

															Where the statute unites all the penalties, the court cannot
separate them, even if separable, unless it is clear that the union
was not made imperative by the legislature; and, in this case, held
that the penalties of cadena temporal, principal and
accessories, under art. 56 of the Penal Code of the Philippine
Islands, are not independent of each other.

															Where the minimum sentence which the court might impose is cruel
and unusual within the prohibition of a bill of rights, the fault
is in the law, and not in the sentence, and if there is no other
law under which sentence can be imposed, it is the duty of the
court to declare the law void.

															Where sentence cannot be imposed under any law except that
declared unconstitutional or void, the case cannot be remanded for
new sentence, but the judgment must be reversed with directions to
dismiss the proceedings.

															In this case, the court declared § 56 of the Penal Code of the
Philippine Page 217 U. S. 351 Islands, and a sentence pronounced thereunder, void as violating
the provision in the Philippine bill of rights contained in 5 of
the act of July 1, 1902, c. 1369, 32 Stat. 691, against the
imposition of excessive fines and the infliction of cruel and
unusual punishment, insofar as being prescribed for an offense by
an officer of the Government of making false entries in public
records as to payments of 616 pesos, the punishment being a fine of
4,000 pesos and cadena temporal of over twelve years with
accessories, such accessories including the carrying of chains,
deprivation of civil rights during imprisonment, and thereafter
perpetual disqualification to enjoy political rights, hold office,
etc., and subjection besides to surveillance.

															The history of the adoption of the Eighth Amendment to the
Constitution of the United States and cases involving
constitutional prohibitions against excessive fines and cruel and
unusual punishment reviewed and discussed in the opinion of the
court and the dissenting opinion.

															The facts, which involve the legality of § 56 of the Penal Code
of the Philippine Islands, and a sentence thereunder, under the
guarantees against cruel and unusual punishments of the bill of
rights of the Philippine Islands as expressed in the act of July 1,
1902, are stated in the opinion. Page 217 U. S. 357 MR. JUSTICE McKENNA delivered the opinion of the court. * This writ of error brings up for review the judgment of the
supreme court of the Philippine Islands, affirming the conviction
of plaintiff in error for falsifying a "public and official
document."

															In the "complaint," by which the prosecution was begun, it was
charged that the plaintiff in error,

															"a duly appointed, qualified, and acting disbursing officer of
the Bureau of Coast Guard and Transportation of the United States
Government of the Philippine Islands,"

															did, as such,

															"corruptly, and with intent then and there to deceive and
defraud the United States Government of the Philippine Islands and
its officials, falsify a public and official document, namely, a
cash book of the captain of the port of Manilla, Philippine
Islands, and the Bureau of Coast Guard and Transportation of the
United States Government of the Philippine Islands,"

															kept by him as disbursing officer of that bureau. The
falsification, which is alleged with much particularity, was
committed by entering as paid out, "as wages of employees of the
lighthouse service Page 217 U. S. 358 of the United States Government of the Philippine Islands," at
the Capul Light House, of 208 pesos, and for like service at the
Matabriga Light House of 408 pesos, Philippine currency. A demurrer
was filed to the "complaint," which was overruled.

															He was convicted, and the following sentence was imposed upon
him:

															"To the penalty of fifteen years of cadena, together with the
accessories of section 56 of the Penal Code, and to pay a fine of
4,000 pesetas, but not to serve imprisonment as a subsidiary
punishment in case of his insolvency, on account of the nature of
the main penalty, and to pay the costs of this cause."

															The judgment and sentence were affirmed by the supreme court of
the islands.

															It is conceded by plaintiff in error that some of the questions
presented to the Supreme Court of the Philippine Islands cannot be
raised in this court, as the record does not contain the evidence.
Indeed, plaintiff in error confines his discussion to one point
raised in the court below and to three other questions, which,
though not brought to the attention of the Supreme Court of the
islands, and not included in the assignment of errors, are of such
importance, it is said, that this court will consider them under
the right reserved in Rule 35.* Page 217 U. S. 359 These questions, which are assigned as error on the argument
here, are as follows:

															"1. The court below erred in overruling the demurrer to the
complaint, this assignment being based upon the fact that, in the
complaint, the plaintiff in error is described as the 'disbursing
officer of the Bureau of Coast Guard and Transportation of the
United States Government of the Philippine Islands,' and the cash
book referred to in the complaint is described as a book 'of the
captain of the port of Manila, Philippine Islands,' whereas there
is no such body politic as the 'United States government of the
Philippine Islands.'"

															"2. The record does not disclose that the plaintiff in error was
arraigned, or that he pleaded to the complaint after his demurrer
was overruled and he was 'ordered to plead to the complaint.'"

															"3. The record does not show that the plaintiff in error was
present when he was tried, or, indeed, that he was present in court
at any time."

															"4. The punishment of fifteen years' imprisonment was a cruel
and unusual punishment, and, to the extent of the sentence, the
judgment below should be reversed on this ground."

															The second assignment of error was based upon a misapprehension
of the fact, and has been abandoned.

															The argument to support the first assignment of error is based
upon certain acts of Congress and certain acts of the Philippine
Commission in which the government of the United States and the
government of the Islands are distinguished. Page 217 U. S. 360 And it is urged that, in one of the acts (§ 3396 of the acts of
the commission) it is recognized that there may be allegiance to or
treason against both or "either of them," and (§ 3397) that there
may be "rebellion or insurrection against the authority" of either,
and (§ 3398) that there may be a conspiracy to overthrow either, or
to "prevent, hinder, or delay the execution of any law of either."
Other sections are cited in which it is contended that the insular
government is spoken of as an "entity," and distinguished from that
of the United States. Section 1366, which defines the duty of the
attorney general, it is pointed out, especially distinguishes
between "causes, civil or criminal, to which the United States or
any officer thereof in his official capacity is a party," and
causes, civil or criminal, to which the "government of the
Philippine Islands or any officer thereof in his official capacity
is a party." And, still more decisively, it is urged, by
subdivision "C" of § 1366, in which it is recognized that the cause
of action may be for money, and that the judgment may be for money
"belonging to the government of the United States and that of the
Philippine Islands or some other province." It is therefore
contended that the Government of the United States and that of the
Philippine Islands are distinct legal entities, and that there may
be civil obligations to one and not to the other; that there may be
governmental liability to the one and not to the other, and that
proceedings, civil or criminal, against either must recognize the
distinction to be sufficient to justify a judgment. To apply these
principles, let us see what the information charges. It describes
Weems, plaintiff in error, as

															"a public official of the United States Government of the
Philippine Islands, to-wit, a duly appointed and qualified acting
disbursing official of the Bureau of Coast Guard and Transportation
of the United States Government of the Philippine Islands,"

															and it is charged that, by taking advantage of his official
position, with intent to "deceive and defraud the United States
government of the Phillipine Islands," he falsified a public and
official document. In the same manner, the government Page 217 U. S. 361 is designated throughout the information. It is contended that
"there is no such body politic as the United States Government
of the Philippine Islands,'" and it is urged that the objection
does not relate to a matter of form. "It is as substantial," it is
said, as the point involved in Carrington v. United
States, 208 U. S. 1 , where a
military officer of the United States was prosecuted as a civil
officer of the government of the Philippines. His conviction was
reversed, this court holding that, "as a soldier, he was not an
official of the Philippines, but of the United States." It is true that the distinctions raised are expressed in the
statutes, and necessarily so. It would be difficult otherwise to
provide for government where there is a paramount authority making
use of subordinate instrumentalities. We have examples in the
states of the Union and their lesser municipal divisions, and
rights may flow from and to such lesser divisions. And the
distinction in the Philippine statutes means no more than that,
and, conforming to that, a distinction is clearly made in the
information. Weems' official position is described as "Disbursing
Officer of the Bureau of Coast Guard and Transportation of the
United States Government of the Philippine Islands." There is no
real uncertainty in this description, and whatever technical nicety
of discrimination might have been insisted on at one time cannot
now be, in view of the provisions of the Philippine Criminal Code
of Procedure, which requires a public offense to be described in
"ordinary and concise language," not necessarily in the words of
the statute,

															"but in such form as to enable a person of common understanding
to know what is intended, and the court to pronounce judgment
according to the right."

															And it is further provided that

															"no information or complaint is insufficient, nor can the trial,
judgment, or other proceeding be affected, by reason of a defect in
matter of form which does not tend to prejudice a substantial right
of the defendant upon the merits."

															(§ 10) Carrington v. United States, 208 U. S.
1 , is not in point. In Page 217 U. S. 362 that case it was attempted to hold Carrington guilty of an
offense as a civil officer for what he had done as a military
officer. As he was the latter, he had not committed any offense
under the statute. The first assignment of error is therefore not
sustained.

															It is admitted, as we have seen, that the questions presented by
the third and fourth assignments of error were not made in the
courts below, but a consideration of them is invoked under rule 35,
which provides that this court, "at its option, may notice a plain
error not assigned."

															It is objected on the other side that Paraiso v. United
States, 207 U. S. 368 ,
stands in the way. But the rule is not altogether controlled by
precedent. It confers a discretion that may be exercised at any
time, no matter what may have been done at some other time. It is
true we declined to exercise it in Paraiso v. United
States, but we exercised it in Wiborg v. United
States, 163 U. S. 632 , 163 U. S. 658 ; Clyatt v. United States, 197 U. S. 207 , 197 U. S. 221 ,
and Crawford v. United States, 212 U.
S. 183 . It may be said, however, that Paraiso v.
United States is more directly applicable, as it was concerned
with the same kind of a crime as that in the case at bar, and that
it was contended there, as here, that the amount of fine and
imprisonment imposed inflicted a cruel and unusual punishment. It
may be that we were not sufficiently impressed with the importance
of those contentions, or saw in the circumstances of the case no
reason to exercise our right of review under Rule 35. As we have
already said, the rule is not a rigid one, and we have less
reluctance to disregard prior examples in criminal cases than in
civil cases, and less reluctance to act under it when rights are
asserted which are of such high character as to find expression and
sanction in the Constitution or Bill of Rights. And such rights are
asserted in this case.

															The assignment of error is that

															"a punishment of fifteen years' imprisonment was a cruel and
unusual punishment, and, to the extent of the sentence, the
judgment below should be reversed on this ground."

															Weems was convicted, as we Page 217 U. S. 363 have seen, for the falsification of a public and official
document, by entering therein, as paid out, the sums of 208 and 408
pesos, respectively, as wages to certain employees of the
lighthouse service. In other words, in entering upon his cash book
those sums as having been paid out when they were not paid out, and
the "truth," to use the language of the statue, was thereby
perverted "in the narration of facts."

															A false entry is all that is necessary to constitute the
offense. Whether an offender against the statute injures anyone by
his act, or intended to injure anyone, 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 the part of
the person committing it, that a falsification of a public document
be punishable; it is sufficient that the one who committed it had
the intention to pervert the truth and to falsify the document, and
that by it damage might result to a third party."

															The court further, in the definition of the nature of the
offense and the purpose of the law, said: "In public documents, the
law takes into consideration not only private interests, but also
the interests of the community;" and it is its endeavor (and for
this, a decision of the Supreme Court of Spain, delivered in 1873,
was quoted)

															"to protect the interest of society by the most strict
faithfulness on the part of a public official in the administration
of the office intrusted to him,"

															and thereby fulfill the "responsibility of the state to the
community for the official or public documents under the safeguard
of the state." And this was attempted to be secured through the law
in controversy. It is found in § 1 of chapter 4 of the Penal Code
of Spain. The caption of the section is, "Falsification of Official
and Commercial Documents and Telegraphic Despatches." Article 300
provides as follows:

															"The penalties of cadena temporal and a fine of from
1,250 to 12,500 pesetas shall be imposed on a public official who,
taking advantage of his authority, shall commit a falsification. .
. . by perverting the truth in the narration of facts. . . ."

															By other provisions of the Code, we find that there are only Page 217 U. S. 364 two degrees of punishment higher in scale than cadena
temporal, -- death, and cadena perpetua. The
punishment of cadena temporal is from twelve years and one
day to twenty years (Arts. 28 and 96), which "shall be served" in
certain "penal institutions." And it is provided that

															"those sentenced to cadena temporal and cadena
perpetua shall labor for the benefit of the state. They shall
always carry a chain at the ankle, hanging from the wrists; they
shall be employed at hard and painful labor, and shall receive no
assistance whatsoever from without the institution."

															Arts. 105, 106. There are, besides, certain accessory penalties
imposed, which are defined to be (1) civil interdiction; (2)
perpetual absolute disqualification; (3) subjection to surveillance
during life. These penalties are defined as follows:

															"Art. 42. Civil interdiction shall deprive the person punished,
as long as he suffers it, of the rights of parental authority,
guardianship of person or property, participation in the family
council, marital authority, and the right to dispose of his own
property by acts inter vivos. Those cases are excepted in
which the laws explicitly limit its effects."

															"Art. 43. Subjection to the surveillance of the authorities
imposes the following obligations on the persons punished:"

															"1. That of fixing his domicil and giving notice thereof to the
authority immediately in charge of his surveillance, not being
allowed to change it without the knowledge and permission of said
authority, in writing."

															"2. To observe the rules of inspection prescribed."

															"3. To adopt some trade, art, industry, or profession should he
not have known means of subsistence of his own."

															"Whenever a person punished is placed under the surveillance of
the authorities, notice thereof shall be given to the government
and to the governor general."

															The penalty of perpetual absolute disqualification is the
deprivation of office, even though it be held by popular election,
the deprivation of the right to vote or to be elected to Page 217 U. S. 365 public office, the disqualification to acquire honors, etc., and
the loss of retirement pay, etc.

															These provisions are attacked as infringing that provision of
the Bill of Rights of the islands which forbids the infliction of
cruel and unusual punishment. It must be confessed that they, and
the sentence in this case, excite wonder in minds accustomed to a
more considerate adaptation of punishment to the degree of crime.
In a sense, the law in controversy seems to be independent of
degrees. One may be an offender against it, as we have seen, though
he gain nothing and injure nobody. It has, however, some human
indulgence -- it is not exactly Draconian in uniformity. Though it
starts with a severe penalty, between that and the maximum penalty,
it yields something to extenuating circumstances. Indeed, by
Article 96 of the Penal Code, the penalty is declared to be
"divisible," and the legal term of its "duration is understood as
distributed into three parts, forming the three degrees -- that is,
the minimum, medium, and maximum" -- being, respectively, twelve
years and one day to fourteen years and eight months; from fourteen
years, eight months, and one day to seventeen years and four
months; from seventeen years, four months, and one day to twenty
years. The law therefore allows a range from twelve years and a day
to twenty years, and the government, in its brief, ventures to say
that "the sentence of fifteen years is well within the law." But
the sentence is attacked, as well as the law, and what it is to be
well within the law a few words will exhibit. The minimum term of
imprisonment is twelve years, and that, therefore, must be imposed
for "perverting the truth" in a single item of a public record,
though there be no one injured, though there be no fraud or purpose
of it, no gain or desire of it. Twenty years is the maximum
imprisonment, and that only can be imposed for the perversion of
truth in every item of an officer's accounts, whatever be the time
covered and whatever fraud it conceals or tends to conceal. Between
these two possible sentences, which seem to have no adaptable
relation, or rather, Page 217 U. S. 366 in the difference of eight years for the lowest possible offense
and the highest possible, the courts below selected three years to
add to the minimum of twelve years and a day for the falsification
of two items of expenditure, amounting to the sums of 408 and 204
pesos. And the fine and "accessories" must be brought into view.
The fine was 4,000 pesetas -- an excess also over the minimum. The
"accessories," we have already defined. We can now give graphic
description of Weems' sentence and of the law under which it was
imposed. Let us confine it to the minimum degree of the law, for it
is with the law that we are most concerned. Its minimum degree is
confinement in a penal institution for twelve years and one day, a
chain at the ankle and wrist of the offender, hard and painful
labor, no assistance from friend or relative, no marital authority
or parental rights or rights of property, no participation even in
the family council. These parts of his penalty endure for the term
of imprisonment. From other parts, there is no intermission. His
prison bars and chains are removed, it is true, after twelve years,
but he goes from them to a perpetual limitation of his liberty. He
is forever kept under the shadow of his crime, forever kept within
voice and view of the criminal magistrate, not being able to change
his domicil without giving notice to the "authority immediately in
charge of his surveillance," and without permission in writing. He
may not seek, even in other scenes and among other people, to
retrieve his fall from rectitude. Even that hope is taken from him,
and he is subject to tormenting regulations that, if not so
tangible as iron bars and stone walls, oppress as much by their
continuity, and deprive of essential liberty. No circumstance of
degradation is omitted. It may be that even the cruelty of pain is
not omitted. He must bear a chain night and day. He is condemned to
painful as well as hard labor. What painful labor may mean, we have
no exact measure. It must be something more than hard labor. It may
be hard labor pressed to the point of pain. Such penalties for such
offenses amaze those Page 217 U. S. 367 who have formed their conception of the relation of a state to
even its offending citizens from the practice of the American
commonwealths, and believe that it is a precept of justice that
punishment for crime should be graduated and proportioned to
offense.

															Is this also a precept of the fundamental law? We say
fundamental law, for the provision of the Philippine Bill of Rights
prohibiting the infliction of cruel and unusual punishment was
taken from the Constitution of the United States, and must have the
same meaning. This was decided in Kepner v. United States, 195 U. S. 100 , and Serra v. Mortiga, 204 U. S. 477 .
In Kepner v. United States, this court considered the
instructions of the President to the Philippine Commission, and
quoted from them the admonition to the commission that the
government that we were establishing was not designed

															"for our satisfaction or for the expression of our theoretical
views, but for the happiness . . . of the people of the Philippine
Island; and the measures adopted should be made to conform to their
customs, their habits, and even their prejudices, to the fullest
extent consistent with the accomplishment of the indispensable
requisites of just and effective government."

															But, it was pointed out, a qualification accompanied the
admonition, and the commission was instructed "to bear in mind,"
and the people of the islands "made plainly to understand," that
certain great principles of government had been made the basis of
our governmental system which were deemed "essential to the rule of
law and the maintenance of individual freedom." And the president
further declared that there were

															"certain practical rules of government which we have found to be
essential to the preservation of those great principles of liberty
and law."

															These he admonished the commission to establish and maintain in
the islands "for the sake of their liberty and happiness," however
they might conflict with the customs or laws of procedure with
which they were familiar. In view of the importance of these
principles and rules, which the President said the "enlightened Page 217 U. S. 368 thought of the Philippine Islands" would come to appreciate, he
imposed their observance "upon every division and branch of the
government of the Philippines."

															Among those rules was that which prohibited the infliction of
cruel and unusual punishment. It was repeated in the act of July 1,
1902, providing for the administration of the affairs of the civil
government in the islands, and this court said of it and of the
instructions of the President that they were

															"intended to carry to the Philippine Islands those principles of
our government which the President declared to be established as
rules of law for the maintenance of individual freedom."

															The instructions of the President and the act of Congress found
in nominal existence in the islands the Penal Code of Spain, its
continuance having been declared by military order. It may be there
was not and could not be a careful consideration of its provisions
and a determination to what extent they accorded with or were
repugnant to the "great principles of liberty and law" which had
been "made the basis of our governmental system." Upon the
institution of the government of the commission, if not before,
that consideration and determination necessarily came to the
courts, and are presented by this record.

															What constitutes a cruel and unusual punishment has not been
exactly decided. It has been said that, ordinarily, the terms imply
something inhuman and barbarous -- torture and the like. McDonald v. Commonwealth, 173 Mass. 322. The court,
however, in that case, conceded the possibility

															"that punishment in the state prison for a long term of years
might be so disproportionate to the offense as to constitute a
cruel and unusual punishment."

															Other cases have selected certain tyrannical acts of the English
monarchs as illustrating the meaning of the clause and the extent
of its prohibition.

															The provision received very little debate in Congress. We find
from the Congressional Register, p. 225, that Mr. Smith, of South
Carolina, "objected to the words "nor cruel and Page 217 U. S. 369 unusual punishment," the import of them being too indefinite."
Mr. Livermore opposed the adoption of the clause saying:

															"The clause seems to express a great deal of humanity, on which
account I have no objection to it; but, as it seems to have no
meaning in it, I do not think it necessary. What is meant by the
terms 'excessive bail?' Who are to be the judges? What is
understood by 'excessive fines?' It lays with the court to
determine. No cruel and unusual punishment is to be inflicted; it
is sometimes necessary to hang a man, villains often deserve
whipping, and perhaps having their ears cut off; but are we, in
future, to be prevented from inflicting these punishments because
they are cruel? If a more lenient mode of correcting vice and
deterring others from the commission of it could be invented, it
would be very prudent in the legislature to adopt it; but until we
have some security that this will be done, we ought not to be
restrained from making necessary laws by any declaration of this
kind."

															The question was put on the clause, and it was agreed to by a
considerable majority.

															No case has occurred in this court which has called for an
exhaustive definition. In Pervear v.
Massachusetts , 5 Wall. 475, it was decided that the
clause did not apply to state but to national legislation. But we
went further, and said that we perceive nothing excessive, or
cruel, or unusual in a fine of $50 and imprisonment at hard labor
in the house of correction for three months, which was imposed for
keeping and maintaining, without a license, a tenement for the
illegal sale and illegal keeping of intoxicating liquors. A
decision from which no one will dissent.

															In Wilkerson v. Utah, 99 U. S. 130 , the
clause came up again for consideration. A statute of Utah provided
that "a person convicted of a capital offense should suffer death
by being shot, hanged, or beheaded," as the court might direct, or
he should "have his option as to the manner of his execution." The
statute was sustained. The court pointed out that death was an
usual punishment for murder, that it prevailed Page 217 U. S. 370 in the territory for many years, and was inflicted by shooting;
also that that mode of execution was usual under military law. It
was hence concluded that it was not forbidden by the Constitution
of the United States as cruel or unusual. The court quoted
Blackstone as saying that the sentence of death was generally
executed by hanging, but also that circumstances of terror, pain,
or disgrace were sometimes superadded. "Cases mentioned by the
author," the court said,

															"are where the person was drawn or dragged to the place of
execution, in treason; or where he was disemboweled alive,
beheaded, and quartered, in high treason. Mention is also made of
public dissection in murder, and burning alive in treason committed
by a female."

															And it was further said:

															"Examples of such legislation in the early history of the parent
country are given by the annotator of the last edition of
Archbold's treatise. Archbold, Crim. Pr. & Pl. 8th ed.
584."

															This court's final commentary was that

															"difficulty would attend the effort to define with exactness the
extent of the constitutional provision which provides that cruel
and unusual punishments shall not be inflicted; but it is safe to
affirm that punishments of torture, such as those mentioned by the
commentator referred to, and all others in the same line of
unnecessary cruelty, are forbidden by that Amendment to the
Constitution. Cooley, Const.Lim. 4th ed. 408; Wharton, Crim.Law,
7th ed. § 3405."

															That passage was quoted in In Re Kemmler, 136 U.
S. 436 , 136 U. S. 447 ,
and this comment was made:

															"Punishments are cruel when they involve torture or a lingering
death; but the punishment of death is not cruel within the meaning
of that word as used in the Constitution. It implies there
something inhuman and barbarous, and something more than the mere
extinguishment of life."

															The case was an application for habeas corpus, and went off on a
question of jurisdiction, this court holding that the Eighth
Amendment did not apply to state legislation. It was not meant in
the language we have quoted to give a comprehensive definition of
cruel and unusual Page 217 U. S. 371 punishment, but only to explain the application of the provision
to the punishment of death. In other words, to describe what might
make the punishment of death cruel and unusual, though of itself it
is not so. It was found as a fact by the state court that death by
electricity was more humane than death by hanging.

															In O'Neil v. Vermont, 144 U. S. 323 , 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 as it arose under the Constitution of Vermont,
it was not within the province of the court to decide. Moreover, it
was said, as a Federal question, it had always been ruled that the
Eighth Amendment of the Constitution of the United States did not
apply to the states. Mr. Justice Field, Mr. Justice Harlan, and Mr.
Justice Brewer were of opinion that the question was presented, and
Mr. Justice Field, construing the clause of the Constitution
prohibiting the infliction of cruel and unusual punishment, said,
the other two Justices concurring, that the inhibition was directed
not only against punishments which inflict torture, "but against
all punishments which, by their excessive length or severity, are
greatly disproportioned to the offenses charged." He said further:
"The whole inhibition is against that which is excessive in the
bail required or fine imposed or punishment inflicted."

															The law writers are indefinite. Story, in his work on the
Constitution, vol. 2, 5th ed. § 1903, says that the provision "is
an exact transcript of a clause in the Bill of Rights framed at the
revolution of 1688." He expressed the view that the provision

															"would seem to be wholly unnecessary in a free government, since
it is scarcely possible that any department of such a government
should authorize or justify such atrocious conduct."

															He, however, observed that it was

															"adopted as an admonition to all departments of the national
department, to warn them against such violent proceedings as had
taken place in England in the arbitrary reigns of some of the
Stuarts."

															For this he cites 2 Elliott's Debates, 345, and refers to 2
Lloyd's Page 217 U. S. 372 Debates, 225, 226; 3 Elliott's debates, 345. If the learned
author meant by this to confine the prohibition of the provision to
such penalties and punishment as were inflicted by the Stuarts, his
citations do not sustain him. Indeed, the provision is not
mentioned except in 2 Elliott's Debates, from which we have already
quoted. The other citations are of the remarks of Patrick Henry in
the Virginia convention, and of Mr. Wilson in the Pennsylvania
convention. Patrick Henry said that there was danger in the
adoption of the Constitution without a Bill of Rights. Mr. Wilson
considered that it was unnecessary, and had been purposely omitted
from the Constitution. Both, indeed, referred to the tyranny of the
Stuarts. Henry said that the people of England, in the Bill of
Rights, prescribed to William, Prince of Orange, upon what terms he
should reign. Wilson said that

															"the doctrine and practice of a declaration of rights have been
borrowed from the conduct of the people of England on some
remarkable occasions; but the principles and maxims on which their
government is constituted are widely different from those of
ours."

															It appears, therefore, that Wilson, and those who thought like
Wilson, felt sure that the spirit of liberty could be trusted, and
that its ideals would be represented, not debased, by legislation.
Henry and those who believed as he did would take no chances. Their
predominant political impulse was distrust of power, and they
insisted on constitutional limitations against its abuse. But
surely they intended more than to register a fear of the forms of
abuse that went out of practice with the Stuarts. Surely, their
jealousy of power had a saner justification than that. They were
men of action, practical and sagacious, not beset with vain
imagining, and it must have come to them that there could be
exercises of cruelty by laws other than those which inflicted
bodily pain or mutilation. With power in a legislature great, if
not unlimited, to give criminal character to the actions of men,
with power unlimited to fix terms of imprisonment with what
accompaniments they might, what more potent instrument of
cruelty Page 217 U. S. 373 could be put into the hands of power? And it was believed that
power might be tempted to cruelty. This was the motive of the
clause, and if we are to attribute an intelligent providence to its
advocates, we cannot think that it was intended to prohibit only
practices like the Stuarts', or to prevent only an exact repetition
of history. We cannot think that the possibility of a coercive
cruelty being exercised through other forms of punishment was
overlooked. We say "coercive cruelty" because there was more to be
considered than the ordinary criminal laws. Cruelty might become an
instrument of tyranny; of zeal for a purpose, either honest or
sinister.

															Legislation, both statutory and constitutional, is enacted, it
is true, from an experience of evils, but its general language
should not, therefore, be necessarily confined to the form that
evil had theretofore taken. Time works changes, brings into
existence new conditions and purposes. Therefore a principle, to be
vital, must be capable of wider application than the mischief which
gave it birth. This is peculiarly true of constitutions. They are
not ephemeral enactments, designed to meet passing occasions. They
are, to use the words of Chief Justice Marshall, "designed to
approach immortality as nearly as human institutions can approach
it." The future is their care, and provision for events of good and
bad tendencies of which no prophecy can be made. In the application
of a constitution, therefore, our contemplation cannot be only of
what has been, but of what may be. Under any other rule, a
constitution would indeed be as easy of application as it would be
deficient in efficacy and power. Its general principles would have
little value, and be converted by precedent into impotent and
lifeless formulas. Rights declared in words might be lost in
reality. And this has been recognized. The meaning and vitality of
the Constitution have developed against narrow and restrictive
construction. There is an example of this in Cummings
v. Missouri , 4 Wall. 277, where the prohibition
against ex post facto laws was given a more extensive
application than what a minority of this court Page 217 U. S. 374 thought had been given in Calder v. Bull , 3 Dall. 386. See also Ex parte
Garland , 4 Wall. 333. The construction of the 14th
Amendment is also an example, for it is one of the limitations of
the Constitution. In a not unthoughtful opinion, Mr. Justice Miller
expressed great doubt whether that Amendment would ever be held as
being directed against any action of a state which did not
discriminate "against the Negroes as a class, or on account of
their race." Slaughter House
Cases , 16 Wall. 36. To what extent the Amendment
has expanded beyond that limitation need not be instanced.

															There are many illustrations of resistance to narrow
constructions 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 to our
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 it was pronounced
by Chief Justice Marshall ( Gibbons v.
Ogden , 9 Wheat. 1), and reversed a judgment of
Chancellor Kent, justified, as that celebrated jurist supposed, by
a legislative practice of fourteen years and fortified by the
opinions of men familiar with the discussions which had attended
the adoption of the Constitution. Persuaded by such considerations,
the learned chancellor confidently decided that the congressional
power related to "external, not to internal, commerce," and
adjudged that, under an act of the state of New York, Livingston
and Fulton had the exclusive right of using steamboats upon all of
the navigable waters of the state. The strength of the reasoning
was not underrated. It was supported, it was said, "by great names,
by names 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 was questioned. It was said, in effect, that
they supported a construction which

															"would cripple the government Page 217 U. S. 375 and render it unequal to the objects for which it was declared
to be instituted, and to which the powers given, as fairly
understood, render it competent."

															But general discussion we need not farther pursue. We may rely
on the conditions which existed when the Constitution was adopted.
As we have seen, it was the thought of Story, indeed, it must come
to a less trained reflection than his, that government by the
people, instituted by the Constitution, would no imitate the
conduct of arbitrary monarchs. The abuse of power might, indeed, be
apprehended, but not that it would be manifested in provisions or
practices which would shock the sensibilities of men.

															Cooley, in his "Constitutional Limitations," apparently in a
struggle between the effect to be given to ancient examples and the
inconsequence of a dread of them in these enlightened times, is not
very clear or decisive. He hesitates to advance definite views, and
expresses the "difficulty of determining precisely what is meant by
cruel and unusual punishment." It was probable, however, he says,
that

															"any punishment declared by statute for an offense which was
punishable in the same way at common law could not be regarded as
cruel or unusual in a constitutional sense."

															And he says further that

															"probably any new statutory offense may be punished to the extent [italics ours] and in the mode permitted by the
common law for offenses of a similar nature."

															In the cases in the state courts, different views of the
provision are taken. In State v. Driver, 78 N. C. 423,
427, it was said that criminal legislation and its administration
are so uniformly humane that there is seldom occasion for
complaint. In that case, a sentence of the defendant for assault
and battery upon his wife was imprisonment in the county jail for
five years, and at the expiration thereof to give security to keep
the peace for five, in the sum of $500, with sureties, was held to
be cruel and unusual. To sustain its judgment, the court said that
the prohibition against cruel and unusual punishment was not
"intended to warn against merely erratic Page 217 U. S. 376 modes of punishment or torture, but applied expressly to bail,' `fines' and "punishments.'" It was also said
that "the earliest application of the provision in England was in
1689, the first year after the adoption of the Bill of Rights in
1688, to avoid an excessive pecuniary fine imposed upon Lord
Devonshire by the court of King's bench. 11 How.St.Tr. 1354."

															Lord Devonshire was fined $30,000 for an assault and battery
upon Colonel Culpepper, and the House of Lords, in reviewing the
case, took the opinion of the law Lords, and decided that the fine
"was excessive and exorbitant, against Magna Charta, the common
right of the subject, and the law of the land." Other cases have
given a narrower construction, feeling constrained thereto by the
incidences of history.

															In Hobbs v. State, 32 N.E. 1019, the Supreme Court of
Indiana expressed the opinion that the provision did not apply to
punishment by

															"fine or imprisonment or both, but such as that inflicted at the
whipping post, in the pillory, burning at the stake, breaking on
the wheel. . . ."

															It was further said:

															"The word, according to modern interpretation, does not affect
legislation providing imprisonment for life or for years, or the
death penalty by hanging or electrocution. If it did, our laws for
the punishment of crime would give no security to the citizen."

															That conclusion certainly would not follow, and its expression
can only be explained by the impatience the court exhibited at the
contention in that case, which attacked a sentence of two years'
imprisonment in the state prison for combining to assault, beat,
and bruise a man in the night-time. Indeed, in court ventured the
inquiry "whether, in this country, at the close of the nineteenth
century," the provision was "not obsolete," except as an admonition
to the courts "against the infliction of punishment so severe as
not to fit the crime.'" In other words, that it had ceased to
be a restraint upon legislatures, and had become an admonition only
to the courts not to abuse the discretion which might be intrusted
to them. Other cases might Page 217 U. S.
377 be cited in illustration, some looking backwards for
examples by which to fix the meaning of the clause; others giving a
more expansive and vital character to the provision, such as the
President of the United States thought it possessed, and admonished
the Philippine Commission that it possessed as "essential [with
other rights] to the rule of law and the maintenance of individual
freedom." An extended review of the cases in the state courts,
interpreting their respective constitutions, we will not make. It
may be said of all of them that there was not such challenge to the
import and consequence of the inhibition of cruel and unusual
punishments as the law under consideration presents. It has no
fellow in American legislation. Let us remember that it has come to
us from a government of a different form and genius from ours. It
is cruel in its excess of imprisonment and that which accompanies
and follows imprisonment. It is unusual in its character. Its
punishments come under the condemnation of the Bill of Rights, both
on account of their degree and kind. And they would have those bad
attributes even if they were found in a Federal enactment, and not
taken from an alien source.

															Many of the state cases which have been brought to our attention
require no comment. They are based upon sentences of courts, not
upon the constitutional validity of laws. The contentions in other
cases vary in merit and in their justification of serious
consideration. We have seen what the contention was in Hobbs v.
State, supra. In others, however, there was more inducement to
an historical inquiry. In Commonwealth v. Wyatt, 6 Rand.
694, the whipping post had to be justified, and was justified. In
comparison with the "barbarities of quartering, hanging in chains,
castration, etc.," it was easily reduced to insignificance. The
court in the latter case pronounced it "odious, but not unusual."
Other cases have seen something more than odiousness in it, and
have regarded it as one of the forbidden punishments. It is
certainly as odious as the pillory, and the latter has been
pronounced Page 217 U. S. 378 to be within the prohibitory clause. Whipping was also sustained
in Foote v. State. 59 Md. 264, as a punishment for wife
beating. And, it may be, in Aldridge v. Commonwealth, 2
Va.Cases 447. The law considered was one punishing free negroes and
mulattoes for grand larceny. Under the law, a free person of color
could be condemned to be sold as a slave, and transported and
banished beyond the limits of the United States. Such was the
judgment pronounced on the defendant by the trial court, and, in
addition, thirty-nine stripes on his bare back. The judgment was
held valid on the ground that the Bill of Rights of the state
was

															"never designed to control the legislative right to determine ad libitum upon the adequacy of punishment, but is merely
applicable to the modes of punishment."

															Cooley, in his Constitutional Limitations, says that it may be
well doubted if the right exist

															"to establish the whipping post and the pillory in states where
they were never recognized as instruments of punishment, or in
states whose constitutions, revised since public opinion had
banished them, have forbidden cruel and unusual punishment."

															The clause of the Constitution, in the opinion of the learned
commentators, may be therefore progressive, and is not fastened to
the obsolete, but may acquire meaning as public opinion becomes
enlightened by a humane justice. See Ex parte Wilson, 114 U. S. 417 , 114 U. S. 427 ; Mackin v. United States, 117 U. S. 348 , 117 U. S.
350 .

															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 that
of 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, not our
discretion, but our legal duty, strictly defined and imperative in
its direction, is invoked. Then the legislative power is brought to
the judgment of a power superior to it for the Page 217 U. S. 379 instant. And, for the proper exercise of such power, there must
be a comprehension of all that the legislature did or could take
into account -- that is, a consideration of the mischief and the
remedy. However, there is a certain subordination of the judiciary
to the legislature. The function of the legislature is primary, its
exercise fortified by presumptions of right and legality, and is
not to be interfered with lightly, nor by any judicial conception
of its wisdom or propriety. They have no limitation, we repeat, but
constitutional ones, and what those are, the judiciary must judge.
We have expressed these elementary truths to avoid the
misapprehension that we do not recognize to the fullest the wide
range of power that the legislature possesses to adapt its penal
laws to conditions as they may exist, and punish the crimes of men
according to their forms and frequency. We do not intend in this
opinion to express anything that contravenes those
propositions.

															Our meaning may be illustrated. For instance, in Territory
v. Ketchum, 10 N.M. 718, a case that has been brought to our
attention as antagonistic to our views of cruel and unusual
punishments, a statute was sustained which imposed the penalty of
death upon any person who should make an assault upon any railroad
train, car, or locomotive for the purpose and with the intent to
commit murder, robbery, or other felony upon a passenger or
employee, express messenger or mail agent. The Supreme Court of the
territory discussed the purpose of the Eighth Amendment, and
expressed views opposed to those we announce in this opinion, but
finally rested its decision upon the conditions which existed in
the territory, and the circumstances of terror and danger which
accompanied the crime denounced. So also may we mention the
legislation of some of the states, enlarging the common law
definition of burglary, and dividing it into degrees, fixing a
severer punishment for that committed in the night-time from that
committed in the daytime, and for arson of buildings in which human
beings may be from arson of buildings which may be Page 217 U. S. 380 vacant. In all such cases, there is something more to give
character and degree to the crimes than the seeking of a felonious
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, and
other crimes. Section 86 of the Penal Laws of the United States, as
revised and amended by the act of Congress of March 4, 1909 (35
Stat. 1088), provides that any person charged with the payment of
any appropriation made by Congress, who shall pay to any clerk or
other employee 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 of 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 punishment provided for it
is in great contrast to the penalties of cadena temporal and its "accessories." If we turn to the legislation 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 "accessories"), to cadena perpetua, fixed by the
Spanish Penal Code for the falsification of bank notes and other
instruments authorized by the law of the kingdom, it is provided
that the forgery of or counterfeiting the obligations or securities
of the United States or of the Philippine Islands shall be punished
by a fine of not more than 10,000 pesos and by imprisonment of not
more than Page 217 U. S. 381 fifteen years. In other words, the highest punishment possible
for a crime which may cause the loss of many thousand of dollars,
and to prevent which the duty of the state should be as eager as to
prevent the perversion of truth in a public document, is not
greater than that which may be imposed for falsifying a single item
of a public account. And this contrast shows more than different
exercises of legislative judgment. It is greater than that. It
condemns the sentence in this case as cruel and unusual. It
exhibits a difference between unrestrained power and that which is
exercised under the spirit of constitutional limitations formed to
establish justice. The state thereby suffers nothing, and loses no
power. The purpose of punishment is fulfilled, crime is repressed
by penalties of just, not tormenting, severity, its repetition is
prevented, and hope is given for the reformation of the
criminal.

															It is suggested that the provision for imprisonment in the
Philippine Code is separable from the accessory punishment, and
that the latter may be declared illegal, leaving the former to have
application. United States v. Pridgeon, 153 U. S.
48 , is referred to. The proposition decided in that case
was that,

															"where a court has jurisdiction of the person and of the
offense, the imposition of a sentence in excess of what the law
permits does not render the legal or authorized portion of the
sentence void, but only leaves such portion of the sentence as may
be in excess open to question and attack."

															This proposition is not applicable to the case at bar. The
imprisonment and the accessories were in accordance with the law.
They were not in excess of it, but were positively required by it.
It is provided in Article 106, as we have seen, that those
sentenced to cadena temporal shall labor for the benefit
of the state; shall always carry a chain at the ankle, hanging from
the wrist; shall be employed at hard and painful labor; shall
receive no assistance whatsoever from without the penal
institutions. And it is provided in Article 56 that the penalty of cadena temporal shall include the accessory penalties.

															In In Re Graham, 138 U. S. 461 , it
was recognized to be

															"the Page 217 U. S. 382 general rule that a judgment rendered by a court in a criminal
case must conform strictly to the statute, and that any variation
from its provisions, either in the character or the extent of
punishment inflicted, renders the judgment absolutely void."

															In Ex parte Karstendick, 93 U. S.
396 , 93 U. S. 399 ,
it was said:

															"In cases where the statute makes hard labor a part of the
punishment, it is imperative upon the court to include that in its
sentence."

															A similar view was expressed in In Re Mills, 135 U. S. 263 , 135 U. S. 266 .
It was recognized in United States v. Pridgeon and the
cases quoted which sustained it.

															The Philippine Code unites the penalties of cadena
temporal, principal and accessory, and it is not in our power
to separate them, even if they are separable, unless their
independence is such that we can say that their union was not made
imperative 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 it into effect in the islands did
not attempt to destroy the unity of its provisions or the effect of
that unity. In other words, it was put into force as it existed,
with all its provisions dependent. We cannot, therefore, declare
them separable.

															It follows from these views that, even if the minimum penalty of cadena temporal had been imposed, it would have been
repugnant to the Bill of Rights. In other words, the fault is in
the law; and, as we are pointed to no other under which a sentence
can be imposed, the judgment must be reversed, with directions to
dismiss the proceedings. So ordered. MR. JUSTICE LURTON, not being a member of the court when this
case was argued, took no part in its decision.

															* This case was argued before seven Justices, MR. JUSTICE MOODY
being absent on account of sickness and MR. JUSTICE LURTON not then
having taken his sear. MR. JUSTICE BREWER died before the opinion
was delivered. MR. JUSTICE McKENNA delivered the opinion of the
court, THE CHIEF JUSTICE, MR. JUSTICE HARLAN, and MR.. JUSTICE DAY
concurring with him. MR. JUSTICE WHITE delivered a dissenting
opinion (p. 217 U. S. 382 , post ), MR. HUSTICE HOLMES concurring with him.

															*

															"Rule 35. Assignment of Errors."

															"1. Where an appeal or a writ of error is taken from a District
Court or a Circuit Court direct to this court, under § 5 of the act
entitled 'An act to establish Circuit Courts of Appeals and to
define and regulate in certain cases the jurisdiction of the courts
of the United States, and for other purposes,' approved March 3,
1891, the plaintiff in error or appellant shall file with the clerk
of the court below, with his petition for the writ of error or
appeal, an assignment of errors, which shall set out separately and
particularly each error asserted and intended to be urged. No writ
of error or appeal shall be allowed until such assignment of errors
shall have been filed. When the error alleged is to the admission
or to the rejection of evidence, the assignment of errors shall
quote the full substance of the evidence admitted or rejected. When
the error alleged is to the charge of the court, the assignment of
errors shall set out the part referred to totidem verbis, whether it be in instructions given or in instructions refused.
Such assignment of errors shall form part of the transcript of the
record, and be printed with it. When this is not done, counsel will
not be heard, except at the request of the court; and errors not
assigned according to this rule will be disregarded, but the court,
at its option, may notice a plain error not assigned."

															"2. The plaintiff in error or appellant shall cause the record
to be printed, according to the provisions of §§ 2, 3, 4, 5, 6, and
8 of Rule 10."

															For this and all rules of the Supreme Court of the United
States, see Appendix, 210 U.S.

															MR. JUSTICE WHITE, dissenting:

															The Philippine law made criminal the entry in a public record by
a public official of a knowingly false statement. The Page 217 U. S. 383 punishment prescribed for violating this law was fine and
imprisonment in a penal institution at hard and painful labor for a
period ranging from twelve years and a day to twenty years, the
prisoner being subjected, as accessories to the main punishment, to
carrying during his imprisonment a chain at the ankle, hanging from
the wrist, deprivation during the term of imprisonment of civil
rights, and subjection, besides, to perpetual disqualification to
enjoy political rights, hold office, etc., and, after discharge, to
the surveillance of the authorities. The plaintiff in error, having
been convicted of a violation of this law, was sentenced to pay a
small fine and to undergo imprisonment for fifteen years, with the
resulting accessory punishments above referred to. Neither at the
trial in the court of first instance nor in the Supreme Court of
the Philippine Islands was any question raised concerning the
repugnancy of the statute defining the crime and fixing its
punishment to the provision of the Philippine Bill of Rights,
forbidding cruel and unusual punishment. Indeed, no question on
that subject was even indirectly referred to in the assignments of
error filed in the court below for the purpose of this writ of
error. In the brief of counsel, however, in this court, the
contention was made that the sentence was void, because the term of
imprisonment was a cruel and unusual one, and therefore repugnant
to the Bill of Rights. Deeming this contention to be of such
supreme importance as to require it to be passed upon, although not
raised below, the court now holds that the statute, because of the
punishment which it prescribes, was repugnant to the Bill of
Rights, and therefore void, and, for this reason alone, reverses
and remands with directions to discharge.

															The Philippine Bill of Rights, which is construed and applied,
is identical with the cruel and unusual punishment clause of the
Eighth Amendment. Because of this identity, it is now decided that
it is necessary to give to the Philippine Bill of Rights the
meaning properly attributable to the provision on the same subject
found in the Eighth Amendment, as, in using the language of that
Amendment in the statute, it is to be Page 217 U. S. 384 presumed that Congress intended to give to the words their
constitutional significance. The ruling now made, therefore, is an
interpretation of the Eighth Amendment, and announces the
limitation which that Amendment imposes on Congress when exercising
its legislative authority to define and punish crime. The great
importance of the decision is hence obvious.

															Of course, in every case where punishment is inflicted for the
commission of crime, if the suffering of the punishment by the
wrongdoer be alone regarded, the sense of compassion aroused would
mislead and render the performance of judicial duty impossible. And
it is to be conceded that this natural conflict between the sense
of commiseration and the commands of duty is augmented when the
nature of the crime defined by the Philippine law and the
punishment which that law prescribes are only abstractly
considered, since the impression is at once produced that the
legislative authority has been severely exerted. I say only
abstractly considered because the first impression produced by the
merely abstract view of the subject is met by the admonition that
the duty of defining and punishing crime has never, in any
civilized country, been exerted upon mere abstract considerations
of the inherent nature of the crime punished, but has always
involved the most practical consideration of the tendency at a
particular time to commit certain crimes, of the difficulty of
repressing the same, and of how far it is necessary to impose stern
remedies to prevent the commission of such crimes. And, of course,
as these considerations involve the necessity for a familiarity
with local conditions in the Philippine Islands which I do not
possess, such want of knowledge at once additionally admonishes me
of the wrong to arise from forming a judgment upon insufficient
data, or without a knowledge of the subject matter upon which the
judgment is to be exerted. Strength, indeed, is added to this last
suggestion by the fact that no question concerning the subject was
raised in the courts below or there considered, and therefore no
opportunity was afforded those courts, presumably, at least,
relatively familiar with the local Page 217 U. S. 385 conditions, to express their views as to the considerations
which may have led to the prescribing of the punishment in
question. Turning aside, therefore, from mere emotional tendencies,
and guiding my judgment alone by the aid of the reason at my
command, I am unable to agree with the ruling of the court. As, in
my opinion, that ruling rests upon an interpretation of the cruel
and unusual punishment clause of the Eighth Amendment, never before
announced, which is repugnant to the natural import of the language
employed in the clause, and which interpretation curtails the
legislative power of Congress to define and punish crime by
asserting a right of judicial supervision over the exertion of that
power, in disregard of the distinction between the legislative and
judicial department of the government, I deem it my duty to dissent
and state my reasons.

															To perform this duty requires at the outset a precise statement
of the construction given by the ruling now made to the provision
of the Eighth Amendment. My inability to do this must, however, be
confessed, because I find it impossible to fix with precision the
meaning which the court gives to that provision. Not for the
purpose of criticizing, but solely in order to indicate my
perplexity on the subject, the reasons for my doubt are briefly
given. Thus, to my mind, it appears as follows: First. That the
court interprets the inhibition against cruel and unusual
punishment as imposing upon Congress the duty of proportioning
punishment according to the nature of the crime, and casts upon the
judiciary the duty of determining whether punishments have been
properly apportioned in a particular statute, and if not, to
decline to enforce it. This seems to me to be the case because of
the reference made by the court to the harshness of the principal
punishment (imprisonment), and its comments as to what it deems to
be the severity, if not inhumanity, of the accessories which result
from or accompany it, and the declaration in substance that these
things offend against the just principle of proportioning
punishment to the nature of the crime punished, stated to be a Page 217 U. S. 386 fundamental precept of justice and of American criminal law.
That this is the view now upheld, it seems to me, is additionally
demonstrated by the fact that the punishment for the crime in
question, as imposed by the Philippine law, is compared with other
Philippine punishments for crimes deemed to be less heinous, and
the conclusion is deduced that this fact, in and of itself, serves
to establish that the punishment imposed in this case 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 punishment for the
crimes as to 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 lenient or severe, existing
in other and distinct jurisdictions; and that a failure to do so
authorizes the courts to consider such standards in their
discretion, and judge of the validity of the law accordingly. I say
this because, although the court expressly declares in the opinion,
when considering a case decided by the highest court of one of the
territories of the United States, that 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 not alone by the Philippine legislation, but by the provisions
of several acts of 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 by
the Philippine law over the more lenient punishments prescribed in
the laws of Congress establishes that the Philippine law is
repugnant to the Eighth Amendment.

															Third. That the cruel and unusual punishment clause of the
Eighth Amendment controls not only the exertion of legislative
power as to modes of punishment, proportionate or otherwise, but
addresses itself also to the mainspring of the Page 217 U. S. 387 legislative motives in enacting legislation punishing crime in a
particular case, and therefore confers upon courts the power to
refuse to enforce a particular law defining and punishing crime,
if, in their opinion, such law does not manifest that the lawmaking
power, in fixing the punishment, was sufficiently impelled by a
purpose to effect a reformation of the criminal. This is said
because of the statements contained in the opinion of the court as
to the legislative duty to shape legislation not only with a view
to punish, but to reform the criminal, and the inferences 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 power to fix the punishment for crime
by excepting out of that authority the right to impose bodily
punishments of a cruel kind, in the strict acceptation of those
terms, but limits the legislative discretion in determining to what
degree of severity an appropriate and usual mode of punishment may,
in a particular case, be inflicted, and therefore endows the courts
with the right to supervise the exercise of legislative discretion
as to the adequacy of punishment, even although resort is had only
to authorized kinds of punishment, thereby endowing the courts with
the power to refuse to enforce laws punishing crime, if, in the
judicial judgment, the legislative branch of the government has
prescribed a too severe punishment.

															Not being able to assent to these, as it to me seems, in some
respects conflicting, or, at all events, widely divergent,
propositions, I shall consider them all as sanctioned by the
interpretation now given to the prohibition of the Eighth
Amendment, and with this conception in mind shall consider the
subject.

															Before approaching the text of the Eighth Amendment to determine
its true meaning, let me briefly point out why, in my opinion, it
cannot have the significance which it must receive to sustain the
propositions rested upon it. In the first place, if it be that the
lawmaker, in defining and punishing crime, is imperatively
restrained by constitutional provisions to apportion Page 217 U. S. 388 punishment by a consideration alone of the abstract heinousness
of the offenses punished, it must result that the power is so
circumscribed as to be impossible of execution; or, at all events,
is so restricted as to exclude the possibility of taking into
account, in defining and punishing crime, all those considerations
concerning the condition of society, the tendency to commit the
particular crime, the difficulty of detecting the same, the
necessity for resorting to stern measures of repression, and
various other subjects which have, at all times, been deemed
essential to be weighed in defining and punishing crime. And
certainly the paralysis of the discretion vested in the lawmaking
authority which the propositions accomplish is immeasurably
magnified when it is considered that this duty of proportioning
punishment requires the taking into account of the standards
prevailing in other or different countries or jurisdictions,
thereby at once exacting that legislation on the subject of crime
must be proportioned not to the conditions to which it is intended
to apply, but must be based upon conditions with which the
legislation, when enacted, will have no relation or concern
whatever. And when it is considered that the propositions go
further, and insist that, if the legislation seems to the judicial
mind not to have been sufficiently impelled by motives of
reformation of the criminal, such legislation defining and
punishing crime is to be held repugnant to constitutional
limitations, the impotency of the legislative power to define and
punish crime is made manifest. When to this result is added the
consideration that the interpretation, by its necessary effect,
does not simply cause the cruel and unusual punishment clause to
carve out of the domain of legislative authority the power to
resort to prohibited kinds of punishments, but subjects to judicial
control the degree of severity with which authorized modes of
punishment may be inflicted, it seems to me that the demonstration
is conclusive that nothing will be left of the independent
legislative power to punish and define crime, if the interpretation
now made be pushed in future application to its logical
conclusion. Page 217 U. S. 389 But let me come to the Eighth Amendment, for the purpose of
stating why the clause in question does not, in my opinion,
authorize the deductions drawn from it, and therefore does not
sanction the ruling now made.

															I shall consider the Amendment a as to its origin in
the mother country, and the meaning there given to it prior to the
American Revolution; b its migration and existence in the
states after the Revolution, and prior to the adoption of the
Constitution; c its incorporation into the Constitution,
and the construction given to it in practice from the beginning to
this time; and d the judicial interpretation which it has
received, associated with the construction affixed, both in
practice and judicially, to the same provision found in various
state constitutions or Bills of Rights.

															Without going into unnecessary historical detail, it is
sufficient to point out, as did the court in In re
Kemmler, 136 U. S. 436 , 136 U. S. 446 ,
that

															"the provision in reference to cruel and unusual punishments was
taken from the well known act of Parliament of 1688 [1689?],
entitled 'An Act Declaring the Rights and Liberties of the Subject,
and Settling the Succession of the Crown.'"

															And this act, it is to be observed, was but in regular form a
crystallization of the Declaration of Rights of the same year. 3
Hallam, Const. Hist. p. 106. It is also certain, as declared in the Kemmler case, that "this Declaration of Rights had
reference to the acts of the executive and judicial departments of
the government of England," since it but embodied the grievances
which it was deemed had been suffered by the usurpations of the
Crown and transgressions of authority by the courts. In the
recitals both of the Declaration of Rights and the Bill of Rights,
the grievances complained of were that illegal and cruel
punishments had been inflicted, "which are utterly and directly
contrary to the known laws and statutes and freedom of this realm;"
while, in both the Declaration and the Bill of Rights, the remedy
formulated was a declaration against the infliction of cruel and
unusual punishments.

															Whatever may be the difficulty, if any, in fixing the
meaning Page 217 U. S. 390 of the prohibition at its origin, it may not be doubted, and
indeed is not questioned by anyone, that the cruel punishments
against which the Bill of Rights provided were the atrocious,
sanguinary, and inhuman punishments which had been inflicted in the
past upon the persons of criminals. This being certain, the
difficulty of interpretation, if any, is involved in determining
what was intended by the unusual punishments referred to and which
were provided against. Light, however, on this subject, is at once
afforded by observing that the unusual punishments provided against
were responsive to and obviously considered to be the illegal
punishments complained of. These complaints were, first, that
customary modes of bodily punishments, such as whipping and the
pillory, had, under the exercise of judicial discretion, been
applied to so unusual a degree as to cause them to be illegal; and,
second, that, in some cases, an authority to sentence to perpetual
imprisonment had been exerted under the assumption 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 imprisonment in the absence of express legislative
authority. In other words, the prohibitions, although conjunctively
stated, were really disjunctive, and embraced braced as follows: a prohibitions against a resort to the inhuman bodily
punishments of the past; b or, where certain bodily
punishments were customary, a prohibition against their infliction
to such an extent as to be unusual and consequently illegal; c or the infliction, under the assumption of the exercise
of judicial discretion, of unusual punishments not bodily, which
could not be imposed except by express statute, or which were
wholly beyond the jurisdiction of the court to impose.

															The scope and power of the guaranty as we have thus stated it
will be found portrayed in the reasons assigned by the members of
the House of Lords who dissented against two judgments for perjury
entered in the King's bench against Titus Oates. 10 How.St.Tr. col.
1325. Page 217 U. S. 391 The judgments and the dissenting reasons are copied in the
margin. [ Footnote 1 ]

															As well the dissent referred to as the report of the
conferees Page 217 U. S. 392 on the part of the House of Commons, made to that body
concerning a bill to set aside the judgments against Oates above
referred to (5 Cobbett's Parl.History, col. 386), proceeded upon
the identity of what was deemed to be the illegal practices
complained of, and which were intended to be rectified by the
prohibition against cruel and unusual punishments, Page 217 U. S. 393 made in the Declaration of Rights, and treated that prohibition,
as already stated, as substantially disjunctive, and as forbidding
the doing of the things we have above enumerated. See, for
the disjunctive character of the provision, Stephen, Com.Law Eng.
15th ed. p. 379.

															When the origin and purpose of the Declaration and the Bill of
Rights is thus fixed, it becomes clear that that Declaration is not
susceptible of the meaning now attributed to the same language
found in the Constitution of the United States. That in England it
was nowhere deemed that any theory of proportional punishment was
suggested by the Bill of Rights, or that a protest was thereby
intended against the severity of punishments, speaking generally,
is demonstrated by the practice which prevailed in England as to
punishing crime from the time of the Bill of Rights to the time of
the American Revolution. Speaking on this subject, Stephen, in his
history of the criminal law of England, vol. 1, pp. 470, 471,
says:

															"The severity of the criminal law was greatly increased all
through the eighteenth century by the creation of new felonies
without benefit of clergy. . . . However, after making all
deductions on these grounds, there can be no doubt that the
legislation of the eighteenth century in criminal matters was
severe to the highest degree, and destitute of any sort of
principal or system."

															For the sake of brevity, a review of the practises which
prevailed in the colonial period will not be referred to.
Therefore, attention is at once directed to the express guaranties
in certain of the state constitutions adopted after the Declaration
of Independence, and prior to the formation of the Constitution of
the United States, and the circumstances connected with the
subsequent adoption of the Eighth Amendment.

															In 1776, Maryland, in a Bill of Rights, declared (1 Charters and
Constitutions, pp. 818, 819):

															"XIV. That sanguinary laws ought to be avoided, as far as is
consistent with the safety of the state; and no law to inflict Page 217 U. S. 394 cruel and unusual pains and penalties ought to be made in any
case, or at any time hereafter."

															"XXII. That excessive bail ought not to be required, nor
excessive fines imposed, nor cruel or unusual punishments
inflicted, by the courts of law."

															The Constitution of North Carolina of 1776, in general terms
prohibited the infliction of "cruel or unusual punishments."

															Virginia, by § 9 of the Bill of Rights adopted in 1776, provided
as follows:

															"That excessive bail ought not to be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted."

															In the Massachusetts Declaration of Rights of 1780, a direct
prohibition was placed upon the infliction by magistrates or courts
of cruel or unusual punishments, the provision being as
follows:

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

															The Declaration of Rights of New Hampshire, of 1784, was as
follows:

															"XVIII. All penalties ought to be proportioned to the nature of
the offense. No wise legislature will affix the same punishment to
the crimes of theft, forgery, and the like, which they do to those
of murder and treason; where the same undistinguishing severity is
exerted against all offense, the people are led to forget the real
distinction in the crimes themselves, and to commit the most
flagrant with as little compunction as they do those of the
lightest dye. For the same reason, a multitude of sanguinary laws
is both impolitic and unjust. The true design of all punishments
being to reform, not to exterminate, mankind."

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

															The substantial identity between the provisions of these several
constitutions or Bills of Rights shows beyond doubt that Page 217 U. S. 395 their meaning was understood; that is to say, that the
significance attributed to them in the mother country as the result
of the Bill of Rights of 1689 was appreciated, and that it was
intended, in using the identical words, to give them the same well
understood meaning. It is to be observed that the New Hampshire
Bill of Rights contains a clause admonishing as to the wisdom of
the apportionment of punishment of crime according to the nature of
the offense, but in marked contrast to the reenactment, in express
and positive terms, of the cruel and unusual punishment clause of
the English Bill of Rights, the provision as to apportionment is
merely advisory, additionally demonstrating the precise and
accurate conception then entertained of the nature and character of
the prohibition adopted from the English Bill of Rights.

															Undoubtedly, in the American states, prior to the formation of
the Constitution, the necessity for the protection afforded by the
cruel and unusual punishment guaranty of the English Bill of Rights
had ceased to be a matter of concern, because, as a rule, the cruel
bodily punishments of former times were no longer imposed, and
judges, where moderate bodily punishment was usual, had not, under
the guise of discretion, directed the infliction of such
punishments to so unusual a degree as to transcend the limits of
discretion and cause the punishment to he illegal, and had also not
attempted, in virtue of mere discretion, to inflict such unusual
and extreme punishments as had always been deemed proper to be
inflicted only as the result of express statutory authority.
Despite these considerations, it is true that some of the
solicitude which arose after the submission of the Constitution for
ratification, and which threatened to delay or prevent such
ratification, in part, at least, was occasioned by the failure to
guarantee against the infliction of cruel and unusual punishments.
Thus, in the Massachusetts convention, Mr. Holmes, discussing the
general result of the judicial powers conferred by the
Constitution, and referring to the right of Congress to define and
fix the punishment for crime, said (2 Elliot, Debates, 111): Page 217 U. S. 396 "They are nowhere restrained from inventing the most cruel and
unheared-of punishments, and annexing them to crimes; and there is
no constitutional check on them, but that racks and gibbets may be amongst the most mild instruments of their
discipline."

															That the opposition to the ratification in the Virginia
convention was earnestly and eloquently voiced by Patrick Henry is
too well known to require anything but statement. That the absence
of a guaranty against cruel and unusual punishment was one of the
causes of the solicitude by which Henry was possessed is shown by
the debates in that convention. Thus, Patrick Henry said (3 Elliot,
Debates, 447):

															"In this business of legislation, your members of Congress will
lose the restriction of not imposing excessive fines, demanding
excessive bail, and inflicting cruel and unusual punishments. These
are prohibited by your Declaration of Rights. What has
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 to that of the common law.
They may introduce the practice of France, Spain, and Germany -- of
torturing to extort a confession of the crime. They will say that
they might as well draw examples from those countries as from Great
Britain, and they will tell you that there is such a necessity of
strengthening the arm of government that they must have a criminal
equity, and extort confession by torture, in order to punish with
still more relentless severity. We are then lost and undone. And
can any man think it troublesome when he can, by a small
interference, prevent our rights from being lost? If you will, like
the Virginian government, give them knowledge of the extent of the
rights retained by the people, and the powers of themselves, they
will, if they be honest men, thank you for it. Will they not wish
to go on sure grounds? But, if you leave them otherwise, they will
not know how to proceed; and, being in a state of uncertainty, they
will assume, rather than give up, powers by implication. " Page 217 U. S. 397 These observations, it is plainly to be seen, were addressed to
the fear of the repetition, either by the sanction of law or by the
practice of courts, of the barbarous modes of bodily punishment or
torture, the protest against which was embodied in the Bill of
Rights in 1689.

															The ultimate recognition by Henry of the patriotic duty to
ratify the Constitution and trust to the subsequent adoption of a
Bill of Rights, the submission and adoption of the first ten
Amendments as a Bill of Rights, which followed ratification, the
connection of Mr. Madison with the drafting of the amendments, and
the fact that the Eighth Amendment is in the precise words of the
guaranty on that subject in the Virginia Bill of Rights, would seem
to make it perfectly clear that it was only intended by that
Amendment to remedy the wrongs which had been provided against in
the English Bill of Rights, and which were likewise provided
against in the Virginia provision, and therefore was intended to
guard against the evils so vividly portrayed by Henry in the debate
which we have quoted. That this was the common understanding which
must have existed on the subject is plainly to be inferred from the
fact that the Eighth Amendment was substantially submitted by
Congress without any debate on the subject. 2 Lloyd's Debates, 225.
Of course, in view of the nature and character of the government
which the Constitution called into being, the incorporation of the
Eighth Amendment caused its provisions to operate a direct and
controlling prohibition upon the legislative branch (as well as all
other departments), restraining it from authorizing or directing
the infliction of the cruel bodily punishments of the past, which
was one of the evils sought to be prevented for the future by the
English Bill of Rights, and also restrained the courts from
exerting and Congress from empowering them, to select and exert by
way of discretion modes of punishment which were not usual, or
usual modes of punishment to a degree not usual, and which could
alone be imposed by express authority of law. But this obvious
result lends no Page 217 U. S. 398 support to the theory that the adoption of the Amendment
operated or was intended to prevent the legislative branch of the
government from prescribing, according to its conception of what
public policy required, such punishments, severe or otherwise, as
it deemed necessary for the prevention of crime, provided, only,
resort was not had to the infliction of bodily punishments of a
cruel and barbarous character, against which the Amendment
expressly provided. Not to so conclude is to hold that because the
Amendment, in addition to depriving the lawmaking power of the
right to authorize the infliction of cruel bodily punishments, had
restricted the courts, where discretion was possessed by them, from
exerting the power to punish by a mode or in a manner so unusual as
to require legislative sanction, it thereby deprived Congress of
the power to sanction the punishments which the Amendment forbade
being imposed, merely because they were not sanctioned. In other
words, that because the power was denied to the judiciary to do
certain things without legislative authority, thereby the right on
the part of the legislature to confer the authority was taken away.
And this impossible conclusion would lead to the equally impossible
result that the effect of the Amendment was to deprive Congress of
its legitimate authority to punish crime, by prescribing such modes
of punishment, even although not before employed, as were
appropriate for the purpose.

															That no such meaning as is now ascribed to the Amendment was
attributed to it at the time of its adoption is shown by the fact
that not a single suggestion that it had such a meaning is pointed
to, and that, on the other hand, the practice from the very
beginning shows directly to the contrary, and demonstrates that the
very Congress that adopted the Amendment construed it in practice
as I have construed it. This is so since the first crimes act of
the United States prescribed punishments for crime utterly without
reference to any assumed rule of proportion, or of a conception of
a right in the judiciary to supervise the action of Congress in
respect to Page 217 U. S. 399 the severity of punishment, excluding, always, the right to
impose as a punishment the cruel bodily punishments which were
prohibited. What clearer demonstration can there be of this than
the statement made by this court in Ex parte Wilson, 114 U. S. 427 ,
of the nature of the first crimes act, as follows:

															"By the first crimes act of the United States, forgery of public
securities, or knowingly uttering forged public securities with
intent to defraud, as well as treason, murder, piracy, mutiny,
robbery, or rescue of a person convicted of a capital crime, was
punishable with death; most other offenses were punished by fine
and imprisonment; whipping was part of the punishment of stealing
or falsifying records, fraudulently acknowledging bail, larceny of
goods, or receiving stolen goods; disqualification to hold office
was part of the punishment of bribery; and those convicted of
perjury or subornation of perjury, besides being fined and
imprisoned, were to stand in the pillory for one hour, and rendered
incapable of testifying in any court of the United States. Act of
April 30, 1790, chap. 9, 1 Stat. 112-117; Mr. Justice Wilson's
Charge to the Grand Jury in 1791, 3 Wilson's Works, 380, 381."

															And it is, I think, beyond power even of question that the
legislation of Congress, from the date of the first crimes act to
the present time, but exemplifies the truth of what has been said,
since that legislation from time to time altered modes of
punishment, increasing or diminishing the amount of punishment, as
was deemed necessary for the public good, prescribing punishments
of a new character, without reference to any assumed rule of
apportionment, or the conception that a right of judicial
supervision was deemed to obtain. It is impossible with any regard
for brevity to demonstrate these statements by many illustrations.
But let me give a sample from legislation enacted by Congress of
the change of punishment. By § 14 of the first crimes act (Act
April 30, 1790, chap. 9, 1 Stat. 115), forgery, etc., of the public
securities of the United States, or the knowingly uttering Page 217 U. S. 400 and offering for sale of forged or counterfeited securities of
the United States with intent to defraud, was made punishable by
death. The punishment now is a fine of not more than $5,000, and
imprisonment at hard labor for not more than fifteen years.
Rev.Stat. § 5414.

															By the first crimes act, also, as in numerous others since that
time, various additional punishments for the commission of crime
were imposed, prescribing disqualification to hold office, to be a
witness in the courts, etc., and, as late as 1865, a law was
enacted by Congress which prescribed as a punishment for crime the
disqualification to enjoy rights of citizenship. Rev.Stat. §§ 1996,
1997, 1998.

															Comprehensively looking at the rulings of this court, [ Footnote 2 ] it may be conceded that
hitherto they have not definitely interpreted the precise meaning
of the clause in question, because, in most of the cases in which
the protection of the Amendment has been invoked, the cases came
from courts of last resorts of states, and the opinions leave room
for the contention that they proceeded upon the implied assumption
that the Eighth Amendment did not govern the states, by virtue of
the adoption of the 14th Amendment. However, in Wilkerson v.
Utah, 99 U.S.
130 , a case coming to this court from the territory of Utah,
the meaning of the clause of the Eighth Amendment in question came
directly under review. The question for decision was whether a
sentence to death by shooting, which had been imposed by the court
under the assumed exercise of a discretionary power to fix the mode
of execution of the sentence, was repugnant to the clause. While
the court, in deciding that it was not, did not undertake to fully
interpret the meaning of the clause, it nevertheless, reasoning by
exclusion, expressly negatived the construction now placed upon it.
It was said (pp. 99 U. S.
135 -136): Page 217 U. S. 401 "Difficulty would attend the effort to define with exactness the
extent of the constitutional provision which provides that cruel
and unusual punishments shall not be inflicted; but it is safe to
affirm that punishments of torture, such as those mentioned by the
commentator referred to, and all others in the same line of
unnecessary cruelty, are forbidden by that Amendment to the
Constitution. Cooley, Const.Lim. 4th ed. 408; Wharton, Crim.Law,
7th ed. § 3405."

															And it was doubtless this ruling which caused the court
subsequently to say in In re Kemmler, 136 U.
S. 436 , 136 U. S.
447 :

															"Punishments are cruel when they involve torture or a lingering
death; but the punishment of death is not cruel within the meaning
of that word as used in the Constitution. It implies there
something inhuman and barbarous, something more than the mere
extinguishment of life."

															Generally viewing the action of the states in their Bills of
Rights as to the prohibition against inhuman or cruel and unusual
punishments, it is true to say that those provisions substantially
conform to the English Bill of Rights and to the provision of the
Eighth Amendment we are considering, some using the expression
"cruel and unusual," others the more accurate expression "cruel or
unusual," and some "cruel" only, and, in a few instances, a
provision requiring punishments to be proportioned to the nature of
the offense is added to the inhibition against cruel and unusual
punishments. In one (Illinois), the prohibition against cruel and
unusual punishments is not expressed, although proportional
punishment is commanded; yet in Kelly v. State, 115 Ill.
583, discussing the extent of punishment inflicted by a criminal
statute, the Supreme Court of Illinois declared that "it would not
be for the court to say the penalty was not proportioned to the
nature of the offense." In another state (Ohio), where, in the
early constitution of the state, proportionate punishment was
conjoined with the cruel and unusual punishment provision, the
proportionate provision was omitted in a later constitution. Page 217 U. S. 402 Here again, it is true to say, time forbidding my indulging in a
review of the statutes, that the legislation of all the states is
absolutely in conflict with and repugnant to the construction now
given to the clause, since that legislation but exemplifies the
exertion of legislative power to define and punish crime according
to the legislative conception of the necessities of the situation,
without the slightest indication of the assumed duty to proportion
punishments, and without the suggestion of the existence of
judicial power to control the legislative discretion, provided only
that the cruel bodily punishments forbidden were not resorted to.
And the decisions of the state courts of last resort, it seems to
me, with absolute uniformity, and without a single exception from
the beginning, proceed upon this conception. It is true that, when
the reasoning employed in the various cases in critically examined,
a difference of conception will be manifested as to the occasion
for the adoption of the English Bill of Rights and of the remedy
which it provided. Generally speaking, when carefully analyzed, it
will be seen that this difference was occasioned by treating the
provision against cruel and unusual punishment as conjunctive,
instead of disjunctive, thereby overlooking the fact, which I think
has been previously demonstrated to be the case, that the term
"unusual," as used in the clause, was not a qualification of the
provision against cruel punishments, but was simply synonymous with
illegal, and was mainly intended to restrain the courts, under the
guise of discretion, from indulging in an unusual and consequently
illegal exertion of power. Certain it is, however, whatever may be
these differences of reasoning, there stands out in bold relief in
the state cases, as it is given to me to understand them, without a
single exception, the clear and certain exclusion of any
prohibition upon the lawmaking power to determine the adequacy with
which crime shall be punished, provided only the cruel bodily
punishments of the past are not resorted to. Let me briefly refer
to some of the cases. Page 217 U. S. 403 In Aldridge v. Commonwealth, 2 Va.Cases 447, decided
about twenty years after the ratification of the Eighth Amendment,
speaking concerning the evils to which the guaranty of the Virginia
Bill of Rights against cruel and unusual punishments was addressed,
the court, after referring to the punishments usually applicable in
that state to crime at the time of the adoption of the Bill of
Rights of Virginia, said (p. 450):

															"We consider these sanctions as sufficiently rigorous, and we
knew that the best heads and hearts of the land of our ancestors
had long and loudly declaimed against the wanton cruelty of many of
the punishments practised in other countries; and this section in
the Bill of Rights was framed effectually to exclude these, so that
no future legislature, in a moment, perhaps, of great and general
excitement, should be tempted to disgrace our Code by the
introduction of any of those odious modes of punishment."

															And, four years later, in 1828, applying the same doctrine in Commonwealth v. Wyatt, 6 Rand. 694, where a punishment by
whipping was challenged as contrary to the Virginia Bill of Rights,
the court said (p. 700): "The punishment of offenses by stripes is
certainly odious, but cannot be said to be unusual."

															Until 1865, there was no provision in the Constitution of
Georgia expressly guaranteeing against cruel and unusual
punishments. The Constitution of that year, however, contained a
clause identical in terms with the Eighth Amendment, and the scope
of the guaranty arose for decision in 1872 in Whitten v.
State, 47 Ga. 297. The case was this: upon a conviction for
assault and battery, Whitten had been sentenced to imprisonment or
the payment of a fine of $250 and costs. The contention was that
this sentence was so disproportionate to the offense committed as
to be cruel and unusual and repugnant to the guaranty. In one of
its immediate aspects, the case involved the guaranty against
excessive fines; but, as the imprisonment was the coercive means
for the payment of the fine, in that aspect, the case Page 217 U. S. 404 involved the cruel and unusual punishment clause, and the court
so considered; and, in coming to interpret the clause, said (p.
301):

															"Whether the law is unconstitutional, a violation of that
article of the Constitution which declares excessive fines shall
not be imposed nor cruel and unusual punishments inflicted, is
another question. The latter clause was, doubtless, intended to
prohibit the barbarities of quartering, hanging in chains,
castration, etc. When adopted by the framers of the Constitution of
the United States, larceny was generally punished by hanging;
forgeries, burglaries, etc., in the same way; for, be it
remembered, penitentiaries are of modern origin, and I doubt if it
ever entered into the mind of men of that day that a crime such as
this witness makes the defendant guilty of deserved a less penalty
than the judge has inflicted. It would be an interference with
matters left by the Constitution to the legislative department of
the government for us to undertake to weigh the propriety of this
or that penalty fixed by the legislature for specific offenses. So
long as they do not provide cruel and unusual punishments, such as
disgraced the civilization of former ages, and made one shudder
with horror to read of them, as drawing, quartering, burning, etc.,
the Constitution does not put any limit upon legislative
discretion."

															In State v. White (1890), 44 Kan. 514, 25 Pac. 33, it
was sought to reverse a sentence of five years' imprisonment in the
penitentiary, imposed upon a boy of sixteen for statutory rape. The
girl was aged sixteen, and had consented. It was contended that, if
the statute applied, it was unconstitutional and void,

															"for the reason that it conflicts with § 9 of the Bill of
Rights, because it inflicts cruel and unusual punishment, and is in
conflict with the spirit of the Bill of Rights generally, and is in
violation of common sense, common reason, and common justice."

															The court severely criticized the statute. After deciding that
the offense was embraced in the statute, the court said: Page 217 U. S. 405 "With respect to the severity of the punishment, while we think
it is true that is is a severer one than has ever before been
provided for in any other state or country for such an offense, yet
we cannot say that the statute is void for that reason.
Imprisonment in the penitentiary at hard labor is not, of itself, a
cruel or unusual punishment within the meaning of § 9 of the Bill
of Rights of the Constitution, for it is a kind of punishment which
has been resorted to ever since Kansas has had any existence, and
is a kind of punishment common in all civilized countries. That
section of the Constitution probably, however, relates to the kind
of punishment to be inflicted, and not to its duration. Although
the punishment in this case may be considered severe, and much
severer, indeed, than the punishment for offenses of much greater
magnitude, as adultery, or sexual intercourse coupled with
seduction, yet we cannot say that the act providing for it is
unconstitutional or void."

															In State v. Hogan (1900), 63 Ohio St. 218, the court
sustained a "tramp law," which prescribed as the punishment to be
imposed on a tramp for threatening to do injury to the person of
another, imprisonment in the penitentiary not more than three years
nor less than one year. In the course of the opinion, the court
said:

															"The objection that the act prescribes a cruel and unusual
punishment we think not well taken. Imprisonment at hard labor is
neither cruel nor unusual. It may be severe in the given instance,
but that is a question for the lawmaking power. In re
Kemmler, 136 U. S. 436 ; Cornelison v.
Commonwealth, 84 Kentucky 583. The punishment, to be
effective, should be such as will prove a deterrent. The tramp
cares nothing for a jail sentence. Often he courts it. A workhouse
sentence is less welcome, but there are but few workhouses in the
state. A penitentiary sentence is a real punishment. There he has
to work, and cannot shirk."

															In Minnesota, a register of deeds was convicted of
misappropriating the sum of $62.50, which should have been
turned Page 217 U. S. 406 over by him to the county treasurer. He was sentenced to pay a
fine of $500 and be imprisoned at hard labor for one year. The
contention that the sentence was repugnant to the state
constitutional guaranty against cruel and unusual punishment was
considered and disposed of by the court in State v.
Borgstrom, 69 Minn. 508, 520. Among other things, the court
said:

															"It is claimed that the sentence imposed was altogether
disproportionate to the offense charged, and of which the defendant
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 have given 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
law"

															"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 he yet lives; his head shall be
decapitated; his body divided into four parts."

															"Browne, Bl. Com. 617. For certain other offenses, the offender
was punished by cutting off the hands or ears, or boiling in oil,
or putting in the pillory. By the Roman law, a parricide was
punished by being sewed up in a leather sack with a live dog, a
cock, a viper, and an ape, and cast into the sea. These punishments
may properly be termed cruel, but, happily, the more humane spirit
of this nation does not permit such punishments 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 of the expediency of creating
new crimes and of prescribing the penalty. . . . While the amount
of money misappropriated in this instance was not great, the
legislature evidently had in mind the fact that the
misappropriation by a Page 217 U. S. 407 public official of the public money was destructive of the
public rights and the stability of our government. But fine and
imprisonment are not ordinarily cruel and unusual punishments."

															In Territory v. Ketchum, 10 N. M. 721, the court
considered whether a statute which had recently been put in force,
and which imposed the death penalty instead of a former punishment
of imprisonment for an attempt at train robbery, was cruel and
unusual. In sustaining the validity of the law, the court pointed
out the conditions of society which presumably had led the
lawmaking power to fix the stern penalty, and, after a lengthy
discussion of the subject, it was held that the law did not impose
punishment which was cruel or unusual.

															The cases just reviewed are typical, and I therefore content
myself with noting in the margin many others to the same general
effect. [ Footnote 3 ]

															In stating, as I have done, that, in my opinion, no case could
be found sustaining the proposition which the court now Page 217 U. S. 408 holds, I am, of course, not unmindful that a North Carolina case
( State v. Driver, 78 N. C. 423) is cited by the court as
authority, and that a Louisiana case ( State ex rel. Garvey et.
al. v. Whitaker, 48 La. Ann. 527) is sometimes referred to as
of the same general tenor. A brief analysis of the Driver case will indicate why, in my opinion, it does not support the
contention based upon it. In that case, the accused was convicted
of assault and battery and sentenced to imprisonment for five years
in the county jail. The offense was a common law misdemeanor, and
the punishment, not being fixed by statute, as observed by the
court (page 429), was left to the discretion of the judge. In
testing whether the term of the sentence was unusual, and therefore
illegal, the court held that a long term of imprisonment in the
county jail was unlawful because unusual, and was a gross abuse by
the lower court of its discretion. Although the court made
reference to the constitutional guaranty, there is not the
slightest indication in its opinion that it was deemed there would
have been power to set aside the sentence had it been inflicted by
virtue of an express statutory command. But, this aside, it seems
to me, as the test applied in the Driver case to determine
what was an unusual punishment in North Carolina was necessarily so
local in character, that it affords no possible ground here for
giving an erroneous meaning to the Eighth Amendment. I say this
because an examination of the opinion will disclose that it
proceeded upon a consideration of the disadvantages peculiar to an
imprisonment in a county jail in North Carolina, as compared with
the greater advantages to arise from the imprisonment for a like
term in the penitentiary, the court saying:

															"Now, it is true, our terms of imprisonment are much longer, but
they are in the penitentiary, where a man may live and be made
useful; but a county jail is a close prison, where life is soon in
jeopardy, and where the prisoner is not only useless, but a heavy
public expense."

															As to the Louisiana case, I content myself with saying that it,
in substance, involved merely the question of error committed Page 217 U. S. 409 by a magistrate in imposing punishment for many offenses when,
under the law, the offense was a continuing and single one.

															From all the considerations which have been stated, I can deduce
no ground whatever which, to my mind, sustains the interpretation
now given to the cruel and unusual punishment clause. On the
contrary, in my opinion, the review which has been made
demonstrates that the word "cruel," as used in the Amendment,
forbids only the lawmaking power, in prescribing punishment for
crime, and the courts in imposing punishment, from inflicting
unnecessary bodily suffering through a resort to inhuman methods
for causing bodily torture, like or which are of the nature of the
cruel methods of bodily torture which had been made use of prior to
the Bill of Rights of 1689, and against the recurrence of which the
word "cruel" was used in that instrument. To illustrate. Death was
a well known method of punishment, prescribed by law, and it was,
of course, painful, and, in that sense, was cruel. But the
infliction of this punishment was clearly not prohibited by the
word "cruel," although that word manifestly was intended to forbid
the resort to barbarous and unnecessary methods of bodily torture
in executing even the penalty of death.

															In my opinion, the previous considerations also establish that
the word "unusual" accomplished only three results: first, it
primarily restrains the courts when acting under the authority of a
general discretionary power to impose punishment, such as was
possessed at common law, from inflicting lawful modes of punishment
to so unusual a degree as to cause the punishment to be illegal,
because, to that degree, it cannot be inflicted without express
statutory authority; second, it restrains the courts in the
exercise of the same discretion from inflicting a mode of
punishment so unusual as to be impliedly not within its discretion,
and to be consequently illegal in the absence of express statutory
authority; and, third, as to both the foregoing, it operated to
restrain the lawmaking power from endowing the judiciary with the
right to exert an illegal Page 217 U. S. 410 discretion as to the kind and extent of punishment to be
inflicted.

															Nor is it given to me to see in what respect the construction
thus stated minimizes the constitutional guaranty by causing it to
become obsolete or ineffective in securing the purposes which led
to its adoption. Of course, it may not be doubted that the
provision against cruel bodily punishment is not restricted to the
mere means used in the past to accomplish the prohibited result.
The prohibition, being generic, embraces all methods within its
intendment. Thus, if it could be conceived that tomorrow the
lawmaking power, instead of providing for 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 this
consideration is obvious, it must be equally apparent that the
prohibition 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 are not embraced
within the prohibition against cruel bodily punishment, considered
even in their most generic sense, without disregarding the
elementary rules of construction which have prevailed from the
beginning. Of course, the beneficent application of the
Constitution to the ever-changing requirements of our national life
has, in a great measure, resulted from the simple and general terms
by which the powers created by the Constitution are conferred, or
in which the limitations which it provides are expressed. But this
beneficent result has also essentially depended upon the 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 to be construed so as to include subjects not
within their intendment. That these great results have been
accomplished through the application by the court of the familiar
rule that what is generically included in the words Page 217 U. S. 411 employed in the Constitution is to be ascertained by considering
their origin and their significance at the time of their adoption
in the instrument may not be denied -- Boyd v. United
States, 116 U. S. 616 , 116 U. S. 624 ; Kepner v. United States, 195 U. S. 100 , 195 U. S. 124 , 105 U. S. 125 -- rulings which are directly repugnant to the conception that, by
judicial construction, constitutional limitations may be made to
progress so as to ultimately include that which they were not
intended to embrace -- a principle with which it seems to me the
ruling now made is in direct conflict, since, by the interpretation
now adopted, two results are accomplished: (a) the clause against
cruel punishments, which was intended to prohibit inhumane and
barbarous bodily punishments, is so construed as to limit the
discretion of the lawmaking power in determining the mere severity
with which punishments not of the prohibited character may be
prescribed, and (b) by interpreting the word "unusual," adopted for
the sole purpose of limiting judicial discretion in order thereby
to maintain the supremacy of the lawmaking power, so as to cause
the prohibition to bring about the directly contrary result; that
is, to expand the judicial power by endowing it with a vast
authority to control the legislative department in the exercise of
its discretion to define and punish crime.

															But further than this, assuming, for the sake of argument, that
I am wrong in my view of the Eighth Amendment, and that it endows
the courts with the power to review the discretion of the lawmaking
body in prescribing sentence of imprisonment for crime, I yet
cannot agree with the conclusion reached in this case, that,
because of the mere term of imprisonment, it is within the rule.
True, the imprisonment is at hard and painful labor. But certainly
the mere qualification of painful in addition to hard cannot be the
basis upon which it is now decided that the legislative discretion
was abused, since to understand the meaning of the term requires a
knowledge of the discipline prevailing in the prisons in the
Philippine Islands. The division of hard labor into classes, one
more irksome, and, it may be said, more painful than the other in
the Page 217 U. S. 412 sense of severity, is well known. English prisons act of 1865,
Pub.Gen.Stat. § 19, p. 835. I do not assume that the 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 of hard labor. Such a provision may well be part of the
ordinary prison discipline, particularly in 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 of prisoners; 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 punishments are
the basis of the ruling now made, that the legislative discretion
was so abused as to cause it to be necessary to declare 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,
that they amounted to an abuse of legislative discretion, are
clearly separable from the main punishment -- imprisonment. Where a
sentence is legal in one part and illegal in another, it is not
open to controversy that the illegal, if separable, may be
disregarded and the legal enforced. United States v.
Pridgeon, 153 U. S. 48 . But
it is said here the illegality is not merely in the sentence, but
in the law which authorizes the sentence. Grant the premise. The
illegal is capable of separation from the legal in the law as well
as in the sentence; and because this is a criminal case, it is
nonetheless subject to the rule that, where a statute is
unconstitutional in part and in part not, the unconstitutional
part, if separable, may be rejected and the constitutional part
maintained. Of course, it is true that that can only be done
provided it can be assumed that the legislature would have enacted
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 in addition to a legal punishment, Page 217 U. S. 413 it must be assumed that the legislature would not have defined
and punished the crime to the legal extent, because, to some
extent, the legislature was mistaken as to its powers. But this I
contend is to indulge in an assumption which is unwarranted, and
has been directly decided to the contrary at this term in United States v. Union Supply Co., 215 U. S.
50 . In that case, a corporation was proceeded against
criminally for an offense punishable by imprisonment and fine. The
corporation clearly could not be subjected to the imprisonment, and
the contention was that the lawmaker must be presumed to have
intended that both the punishments should be inflicted upon the
person violating the law, and therefore it could not be intended to
include a corporation within its terms. In overruling the
contention, it was said:

															"And if we free our minds from the notion that criminal statutes
must be construed by some artificial and conventional rule, the
natural inference, when a statute prescribes two independent
penalties, is that it means to inflict them so far as it can, and
that if one of them is impossible, it does not mean, on that
account, to let the defendant escape."

															I am authorized to say that Mr. Justice Holmes concurs in this
dissent.

															[ Footnote 1 ]

															Judgment against Titus Oates upon conviction upon two
indictments for perjury, as announced by the court (10 How.St.Tr.
cols. 1316, 1317):

															"First, The court does order for a fine that you pay 1,000 marks
upon each Indictment."

															"Secondly, That you be stript of all your Canonical Habits."

															"Thirdly, The Court does award, That you do stand upon the
Pillory, and in the Pillory, here before Westminster-hall gate,
upon Monday next, for an hour's time, between the hours of 10 and
12; with a paper over your head (which you must first walk with
round about to all the Courts in Westminster-hall) declaring your
crime. And that is upon the first indictment."

															"Fourthly (on the Second Indictment), upon Tuesday, you shall
stand upon, and in the Pillory, at the Royal Exchange in London,
for the space of an hour, between the hours of 12 and 2; with the
same inscription."

															"You shall upon the next Wednesday be whipped from Aldgate to
Newgate."

															"Upon Friday, you shall be whipped from Newgate to Tyburn, by
the hands of the common hangman."

															"But, Mr. Oates, we cannot but remember, there were several
particular times you swore false about; and therefore, as annual
commemorations, that it may be known to all people as long as you
live, we have taken special care of you for an annual
punishment."

															"Upon the 24th of April every year, as long as you live, you are
to stand upon the Pillory and in the Pillory, at Tyburn, just
opposite to the gallows, for the space of an hour, between the
hours of 10 and 12."

															"You are to stand upon, and in the Pillory, here at
Westminster-hall gate, every 9th of August, in every year, so long
as you live. And that it may be known what we mean by it, 'tis to
remember, what he swore about Mr. Ireland's being in town between
the 8th and 12th of August."

															"You are to stand upon, and in the Pillory, at Charing-cross, on
the 10th of August, every year, during your life, for an hour,
between 10 and 12."

															"The like over against the Temple gate, upon the 11th."

															"And upon the 2d of September (which is another notorious time,
which you cannot but be remember'd of) you are to stand upon, and
in the Pillory, for the space of one hour, between 12 and 2, at the
Royal Exchange; and all this you are to do every year, during your
life; and to be committed close prisoner, as long as you live."

															Dissenting statement of a minority of the House of Lords:

															"1. For that the King's bench, being a temporal court, made it
part of the judgment that Titus Oates, being a clerk, should, for
his said perjuries, be divested of his canonical and priestly
habit, and to continue divested all his life, which is a matter
wholly out of their power, belonging to the ecclesiastical courts
only."

															"2. For that the said judgments are barbarous, inhuman, and
unchristian, and there is no precedents to warrant the punishments
of whipping and committing to prison for life, for the crime of
perjury, which yet were but part of the punishments inflicted upon
him."

															"3. For that the particular matters upon which the indictments
were found were the points objected against Mr. Titus Oates'
testimony in several of the trials, in which he was allowed to be a
good and credible witness, though testified against him by most of
the same persons, who witnessed against him upon those
indictments."

															"4. For that this will be an encouragement and allowance for
giving the like cruel, barbarous, and illegal judgments hereafter
unless this judgment be reversed."

															"5. Because Sir John Holt, Sir Henry Pollexfen, the two chief
justices, and Sir Robert Atkins, chief baron, with six judges more
(being all that were then present), for these and many other
reasons, did, before us, solemnly deliver their opinions, and
unanimously declare, that the said judgments were contrary to law
and ancient practice, and therefore erroneous, and ought to be
reversed."

															"6. Because it is contrary to the declaration on the 12th of
February last, which was ordered by the Lords Spiritual and
Temporal and Commons then assembled, and by their declaration
engrossed in parchment, and enrolled among the records of
Parliament, and recorded in chancery; whereby it doth appear, that
excessive bail ought not to be required, nor excessive fines
imposed, nor cruel nor unusual punishments inflicted."

															[ Footnote 2 ] Pervear v.
Massachusetts , 5 Wall. 475; Wilkerson v.
Utah, 99 U. S. 130 ; Re Kemmler, 136 U. S. 436 ; McElvaine v. Brush, 142 U. S. 155 ; Howard v. Fleming, 191 U. S. 126 .

															[ Footnote 3 ]

															Cases decided in state and territorial courts of last resort
involving the question whether particular punishments were cruel
and unusual: Ex parte Mitchell, 70 California 1; People v. Clark, 106 California 32; Fogarty v.
State, 80 Georgia 450; Kelly v. State, 115 Illinois
683; Hobbs v. State, 133 Indiana 404; State v.
Teeters, 97 Iowa 458; In re Tutt, 55 Kansas 705; Cornelison v. Commonwealth, 84 Kentucky 583; Harper v.
Commonwealth, 93 Kentucky 290; State ex rel. Hohn v.
Baker, 105 Louisiana 378; Foote v. State, 59 Maryland
264, 267; Commonwealth v. Hitchings, 5 Gray, 482; McDonald v. Commonwealth, 173 Massachusetts 322; Lurton v. Newago, 69 Michigan 610; People v.
Morris, 80 Michigan 637; People v. Smith, 94 Michigan
644; People v. Whitney, 105 Michigan 622; Dummer v.
Nungesser, 107 Michigan 481; People v. Huntley, 112
Michigan 569; State v. Williams, 77 Missouri 310; Ex
parte Swann, 96 Missouri 44; State v Moore, 121
Missouri 514; State v. Van Wye, 136 Missouri 227; State v. Gedicke, 43 Vroom 86; Garcie v.
Territory, 1 N. M. 415; State v. Apple, 121 N. C.
585; State ex rel. Larabee v. Barnes, 3 N.D. 319; State v. Becker, 3 S.D. 29; State v. Hodgson, 66
Vt. 134; State v. De Lano, 80 Wisconsin 259; State v.
Fackler, 91 Wis. 418; In re McDonald, 4 Wyoming
150.