# Weems v. United States/Opinion of the Court

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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 employés of the Light House Service [p358] of the United States Government of the Philippine Islands," at the Capul Light House, of 204 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.
[p359] 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 Island.'
"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. [p360] 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 recognixe the distinction to be either, must recognize the distinction to be 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 Gov- [p361] ernment 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's Case, 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 indgment 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 [p362] 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, 658; Clyatt v. United States, 197 U.S. 207, 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 [p363] 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 employés of the Light House 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 IV of the Penal Code of Spain. The caption of the section is "falsification of official and commercial documents and telegraphic dispatches." 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 [p364] 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 suthority, guardianship of person or property, participation in the family council, marital authority, it, of the rights of parental authority, 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 [p365] 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 mimimum 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 [p366] 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 "accesories" must be brought into view. The fine was four thousand pesetas, an excess also over the minimum. The "accesories" 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 [p367] 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, peace and prosperity of the people of the Philippine Islands, 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 [p368] 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 Massachusetts, 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 [p369] 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. The Commonwealth, 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 pre- [p370] vailed 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. Arch. Crim. Pr. Pl. (eighth edition) 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, Cr. L. (7th ed.) § 3405."
That passage was quoted In Re Kemmler, 136 U.S. 436, 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 [p371] 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, § 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 [p372] 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 [p373] 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. State of 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 [p374] thought had been given in Calder v. Bull, 3 Dall. 386. See also Ex parte Garland, 4 Wall. 333. The construction of the Fourteenth 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." Slaughterhouse Cases, 16 Wall. 36, 81. 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), 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 govern- [p375] ment 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 [p376] 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 State Trials, 1354)." Lord Devonshire was fined thirty thousand pounds 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. Rep. 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," etc.
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 nighttime. Indeed the 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 [p377] 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 pro- [p378] nounced to be within the prohibitory clause. Whipping was also sustained in Foot v. State, 59 Maryland, 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, 427; Mackin v. United States, 117 U.S. 348, 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 [p379] 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 employé, 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 day time, and for arson of buildings in which human beings may be from arson of buildings which may be [p380] vacant. In all such cases there is something more to give character and degree to the crimes then 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 contence 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 employé of the United States a sum less than that provided by law, and require a receipt for a sum greater than that paid to and received by him, shall be guilty 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 "accesories." 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 "accesories"), 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 ten thousand pesos and by imprisonment of not more than [p381] 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 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, 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 re Mills, 135 U.S. 263, 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.

# Notes

* ↑ 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 seat. 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. 382, post), Mr. Justice Holmes concurring with him.
* ↑ Rule 35. Assignments 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 [p359] 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 9 of Rule 10.For this and all rules of the Supreme Court of the United States, see Appendix 210 U.S.
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