# Weems v. United States

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Weems v. United States, 217 U.S. 349 (1910), was a decision of the United States Supreme Court. It is primarily notable as it pertains to the prohibition of cruel and unusual punishment. It is cited concerning the political and legal relationship between the United States and the Philippines, which at that time was considered a U.S. colony (see Philippine-American War for more information).

## Dissenting Opinion

    White
United States Supreme Court
217 U.S. 349
Weems v. United States
Error to the Supreme Court of the Philippine Islands
No. 20. Argued: November 30 and December 1, 1909 --- Decided: May 2, 1910
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 has heretofore occurred in this court calling for an exhaustive definition.
[p350] 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 qther 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 emn 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 [p351] 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, in so far 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.
Mr. A. S. Worthington for plaintiff in error:
If Weems was a public official of any Government, it was the government of the Philippine Islands, and not the United States Government. See acts of March 8, 1902, 32 Stat. 54; July 1, 1902, 32 Stat. 691, in which in a great variety of ways they distinguish between the Government of the United States and the government of the Philippine Islands, especially in 994, 53, 67, 71, 74 and 76–83.
The same distinction is maintained in the Coinage Act of March 2, 1903, 32 Stat. 952; and in the legislation of the island government. See §§ 3395, 3399, 3402, 1366 and 2570, Comp. Acts of the Phil. Comm.
This objection does not relate to a matter of form, but is substantial. Carrington v. United States, 208 U.S. 1. The omission of any statement in the record that the defendant [p352] was present at the trial is another fatal defect. Certainly something more than an inference from the opinion of an appellate court is required to show that a person accused of a crime, that may be punished by a long term of imprisonment, was present at his trial. His presence was essential to a valid trial and could not be waived. 1 Bish. Cr. Pro. 271, 1353; Hoyt v. Utah, 110 U.S. 574.
The sentence in this case imposed a cruel and unusual punishment, and for that reason it should be set aside, even if the conviction be not reversed.
In O'Neil v. Vermont, 144 U.S. 323, the majority of the court refused to consider this question, because it was not assigned as error, and because the Eighth Amendment has always been held not to apply to the States; but see dissents of Justices Field, Harlan and Brewer. In Waters-Pierce Oil Co. v. Texas, 212 U.S. 111, it was held that a fine may be so unreasonable as to amount to taking property without due process of law. In Paraiso v. United States, 207 U.S. 368, the question arose but was not decided.
Adjudications on this question are few in number, but see State v. G. H. & S, A. R. Co., 100 Texas, 153, 174, 175.
While all of the provisions of the Constitution of the United States relating to criminal proceedings, have not been extended to the Philippines certain provisions of the Constitution have been made applicable to the Philippine Islands under the act of July 1, 1902, including the prohibition against excessive bail and fines and cruel and unusual punishment.
The language of the act is the same as that of the Eighth Amendment, except that the word "punishment" is used instead of "punishments." Pervear v. Commonwealth, 5 Wall. 475; Kemmler's Case, 136 U.S. 436; Howard v. Fleming, 191 U.S. 126, 135, do not affect the present case.
As to the limitations on punishment under Amendment VIII, see Cooley's Const. Lim., 7th ed.; Maxwell's Crim. Proc., p. 661, cited with approval in Charles v. State, 27 Nebraska, 881; Stoutenburg v. Frazier, 16 App. D.C. 229, and State v. Driver, [p353] 78 N.C. 423, in which a punishment was held unusual because it was excessive. In it, the court citing the case of Lord Devonshire, 11 State Trials, 1354, in which the House of Lords held that a fine of £30,000 was excessive and exorbitant, against Magna Charta, and the common right of the subject and the laws of the land. See also Hobbs v. State, 32 N.E. Rep. 1019, and Johnson v. Waukesha Co., 64 Wisconsin, 281, 288.
Penalties must be fixed with regard to the offense and cannot all be thrown in together, large and small, under the same measure of punishment. Matter of Frazee, 63 Michigan, 397, 408, and see People v. Murray, 76 Michigan, 10, reversing the judgment in the case for errors at the trial, and commenting upon the severity of a sentence of fifty years as being in violation of a clause of the state constitution prohibiting unusual punishments. In State v. Whitaker, 48 La. Ann. 527 a judgment was held void under a constitutional provision identical with the Eighth Amendment, because it sentenced the relators to imprisonment for 2,160 days in default of their paying fine aggregating $720. The legislature cannot inflict the death penalty as a punishment for a simple misdemeanor. Thomas v. Kincaid, 55 Arkansas, 502; Martin v. Johnston, 33 S.W. Rep. 306.
Whe a statute fixes a minimum penalty but gives the court or jury a discretion to go beyond it such discretion must be exercised in reason and justice and in subordination to the constitutional provision prohibiting cruel and unusual punishments. State v. Baker, 3 So. Dak. 2941.
Courts would not be justified in interfering with the discretion and judgment of the legislature, except in very extreme cases, Matter of Bayard, 63 How. Pr. (N.Y.) *73, of punishments so disproportionate to the offense as to shock the sense of the community. Whether the punishment in a given case is cruel or unusual depends, of course, in some degree, upon the punishment inflicted for other offenses. See Penal Laws of the United States as revised and amended by act of March 4, 1909, 35 Stat. 1088, and Code of District of Colum- [p354] bia of March 3, 1891, from which it will be seen, that, in many cases, either in the Federal statutes or in the District Code, there is no minimum term of imprisonment, that being left to the court. A law requiring a convicted person to be imprisoned for not less than twelve years cannot be found in any statute in this country save for the most enormous crimes. Certainly not for such a petty offense as that of which plaintiff in error has been convicted.
While under the Philippine laws some crimes are punished with a severity unknown to any jurisdiction in the United States, even there this sentence is oppressive to the last degree. For illustrations of penalties prescribed in the Philippines for other crimes; see § 390 of the Penal Code, by which a public official embezzling public funds can be punished as severely as the plaintiff in error, only if his embezzlement exceeds 125,000 pesetas.
Even under Philippine laws, one who is guilty of treason or misprision of treason or conspiracy to overthrow the Government of the United States or sedition or perjury may be sent to prison for only thirty days and, except only in case of treason, cannot be imprisoned for a longer term than from six to ten years; and one who embezzles any sum, however great, cannot be imprisoned for more than ten years, and may escape with two years.
Mr. Assistant Attorney General Fowler, with whom Mr. Henry M. Hoyt, formerly Solicitor General, was on the brief, for the United States:
The fact that the record fails to show that plaintiff in error was present during the trial is not a valid ground for reversal.
The third ground relied upon, that the punishment inflicted upon plaintiff in error is cruel and unusual, does not afford ground for jurisdiction, nor is the punishment cruel and unusual within the meaning of that expression as used in the act of July 1, 1902.
This question does not give ground for jurisdiction, be- [p355] cause it was for the first time mentioned in brief of plaintiff in error in this court. Paraiso v. United States, 207 U.S. 368, 370; Lawler v. Walker, 14 How. 149, 152; Spies v. Illinois, 123 U.S. 131, 181; Brooks v. Missouri, 124 U.S. 394; Morrison v. Watson, 154 U.S. 111, 115; Winona &c. Land Co. v. Minnesota, 159 U.S. 540; Oxley Stave Co. v. Butler Co., 166 U.S. 648, 658; Citizens' Bank v. Owensboro, 173 U.S. 636, 643; Home for Incurables v. New York, 187 U.S. 155, 157; Johnson v. Insurance Co., 187 U.S. 491, 495; Chicago Ry. Co. v. McGuire, 196 U.S. 128; Hurlbert v. Chicago, 202 U.S. 275; Osborne v. Clark, 204 U.S. 565; Serra v. Mortiga, 204 U.S. 470; Arkansas v. Schlierholz, 179 U.S. 598; Carey v. Houston &c. Ry. Co., 150 U.S. 170, 181; Ansbro v. United States, 159 U.S. 695; Cornell v. Green, 163 U.S. 75, 78; Cincinnati &c. Ry. Co. v. Thiebaud, 177 U.S. 615, 620.
The sentence imposed is not a cruel and uousual punishment within the meaning of that expression as used in the act of July 1, 1902, nor are the provisions of the Philippine Criminal Code, under which the sentence was pronounced, in contravention of the provisions of said act.
The law was one existing in the Philippine Islands at the time of their cession to the United States, and the Philippine Commission was charged by the Presideht to maintain the body of laws which regulated the rights and obligations of the people, with as little change as expedient, and although this law has been enforced by the courts ever since the Philippines became territory of the United States, yet the Philippine Commission has not deemed it proper to modify this provision in any respect, notwithstanding the fact that they have enacted a very extensive criminal code which defines and provides punishment for a large variety of offenses. See Compilation of Acts of Phil. Com., tit. 44, pp. 1026–1052.
The prohibition of cruel and unusual punishment has no application to a punishment which only exceeds in degree such punishment as is usually inflicted in other jurisdictions for the same or like offense.
[p356] The statute which prohibits the falsification of records by a public official was not abrogated by the clause in the act of July 1, 1902, prohibiting cruel and unusual punishment, and it still remains unlawful to falsify such records even if the punishment provided be regarded as too severe; the court will not hold that that clause of the law is a nullity, and that there is no means of enforcing it, nor will it undertake to draw a line beyond which the law is a nullity and just where the punishment begins to be cruel and unusual.
The punishment imposed is not cruel or unusual within the meaning of the Philippine bill of rights.
The Philippine courts are guided in fixing the amount of a penalty by the circumstances attending the offense, whether extenuating or aggravating. See § 81 of the Penal Code.
The fine imposed is a moderate one.
There is nothing cruel or unusual in a long term of imprisonment, as the words are used in the Bill of Rights. The description there refers rather to mutilations and degradations, and not to length or duration of the punishment. The penalty of cadena temporal, which article 300 prescribes for this class of offenses, includes a term of imprisonment ranging from twelve years and one day to twenty years; articles 28, 96, Penal Code; and the sentence of fifteen years imposed here is therefore well within the law.
This court has not passed upon the meaning of the words cruel and unusual punishment. See Wilkerson v. Utah, 99 U.S. 130; In re Kemmler, 136 U.S. 436.
While the state courts are not entirely in accord as to the meaning of the term, the majority of the cases hold that the words employed in the Constitution signify such punishment as would amount to torture, or which is so cruel as to shock the conscience and reason of men; that something inhuman and barbarous is implied. State v. Williams, 88 Missouri, 310; Miller v. State, 49 N.E. Rep. 894; Hobbs v. State, 32 N.E. Rep. 1019; In re Bayard, 25 Hun, 546; State v. Becker, 51 N.W. Rep. 1018; Territory v. Ketchum, 65 Pac. Rep. 169; [p357] People v. Morris, 45 N.W. Rep. 591. See also O'Neil v. Vermont, 144 U.S. 323, 331, quoting without disapproval, the opinion of the Supreme Court of Vermont sustaining a very large fine in the aggregate and a very long term of imprisonment in addition as not violating the constitutional guaranties.
If the punishment in this case seems excessive compared with the offense, it is for the Philippine legislative power or for Congress to change the law.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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