Joseph McKenna

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 ”

“ Before approaching the text of the 8th 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 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 ”

“ 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. ”

“ 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 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. ”

“ 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. ”

“ 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. ”

“ 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 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. ”

“ Whatever may be the difficulty, if any, in fixing the meaning 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. ”

“ 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. ”

“ Rep. 930 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 8th Amendment did not apply to state legislation. ”

“ 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 ”

“ 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. ”

“ 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. ”

“ 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 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ The 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. ”

“ 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 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. ”

“ In the same manner the government 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, 52 L. ed. 367, 28 Sup. Ct. Rep. 203, where a military officer of the United States was prosecuted as a civil officer of the government of the Philippines. ”

“ 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 ”

“ 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 . ”