Ex parte Mirzan, 119 U. S. 584,
affirmed and applied.
A writ of error to the highest court of a State is not allowed
as of right, and ought not to be sent out when this Court, after
hearing, is of opinion that it is apparent upon the face of the
record that the issue of the writ could only result in the
affirmance of the judgment.
Chapter 489 of the Laws of New York of 1888, which provides
that
"the punishment of death must in every case be inflicted by
causing to pass through the body of a convict a current of
electricity of sufficient intensity to cause death, and the
application of such current must be continued until such convict is
dead,"
is not repugnant to the Constitution of the United States when
applied to a convict who committed the crime for which he was
convicted after the act took effect.
Page 136 U. S. 437
On the 5th May, 1890, Mr. Roger M. Sherman filed a petition for
an original writ of habeas corpus on behalf of Kemmler, accompanied
by a statement in which he said:
"This is a motion for an original writ of habeas corps."
"The petitioner is under sentence of death in the Northern
District of New York, under a statute of New York which imposes the
punishment of death by the passing through his body of a current of
electricity sufficient, in the opinion of the warden of the State
Prison, to cause his death, which current is to be continued until
it kills him; the statute also leaves it to the warden to fix the
day and hour of his death, and contains other features which he
here asserts are in violation of the Fourteenth Amendment. These
features abridge his privileges and immunities as a citizen of the
United States and deprive him of his life without due process of
law."
"Judge Wallace has granted a writ, in the emergency, to afford
an opportunity to make this application. The case having been
passed upon under the state Constitution by the Court of Appeals,
it is suggested that an original writ here is proper."
"The petition, an affidavit showing the emergency, the opinion
of the Court of Appeals of New York, and the state statute are
herewith submitted."
The Court at once gave him a hearing, and, when he had concluded
it, announced its judgment.
PER CURIAM. This case is governed by the rule laid down in
Ex parte Mirzan, 119 U. S. 584,
and, inasmuch as the writ of habeas corpus has been granted by the
Judge of the United States Circuit Court, and the case is
proceeding to a hearing there, we must
Deny the application.
It was then suggested by MR. JUSTICE BLATCHFORD, to whom an
application had been made for a writ of error to the Court of
Appeals of the State of New York to bring up Kemmler's case, that
the application should be made to the full Court, to be heard on
the 19th of May, and notice thereof be given to the Attorney
General of New York, and a corresponding order was made.
Page 136 U. S. 438
The 19th of May passed without hearing this motion. On the 20th,
it came up and was heard.
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court:
This is an application for a writ of error to bring up for
review a judgment of the Supreme Court of the State of New York,
affirming an order of the County Judge of Cayuga County remanding
the relator to the custody of the warden of the state prison at
Auburn, upon a hearing upon habeas corpus. The judgment of the
Supreme Court was entered upon a judgment of the court of appeals
of the State of New York affirming a previous order of the Supreme
Court. The application was originally presented to MR. JUSTICE
BLATCHFORD, and, upon his suggestion, was permitted to be made in
open court, and has been heard upon full argument.
A writ of error to the highest court of a State is not allowed
as of right, and ought not to be sent out when the court in
session, after hearing, is of opinion that it is apparent upon the
face of the record that the issue of the writ could only result in
the affirmance of the judgment.
Spies v. Illinois,
123 U. S. 131.
The writ of habeas corpus was allowed on the 11th day of June,
1889, and made returnable before the county judge of Cayuga County.
The petition was filed by one Hatch, and stated
"that William Kemmler, otherwise called John Hort, is imprisoned
or restrained in his liberty at Auburn State Prison, in the City of
Auburn, County of Cayuga, State of New York, by Charles F. Durston,
agent and warden of Auburn State Prison, having charge thereof;
that he has not been committed, and is not detained by virtue of
any judgment,
Page 136 U. S. 439
decree, final order, or process issued by a court or judge of
the United States in a case where such courts or judges have
exclusive jurisdiction under the laws of the United States or have
acquired exclusive jurisdiction by the commencement of legal
proceedings in such a court, nor is he committed or detained by
virtue of the final judgment or decree of a competent tribunal of
civil or criminal jurisdiction, or the final order of such a
tribunal, made in the special proceedings instituted, for any cause
except to punish him for contempt, or by virtue of an execution or
other process issued upon such a judgment, decree, or final order;
that the cause or pretense of the imprisonment or restraint of said
William Kemmler, otherwise called John Hort, according to the best
knowledge and belief of your petitioner, is that he was indicted by
a grand jury of Erie County for murder in the first degree; that he
was tried therefor at a court of oyer and terminer of Erie County,
and found guilty thereof by the verdict of a jury on the 10th day
of May, 1889; that thereafter, and on the 14th day of May, 1889, he
was arraigned in said court of oyer and terminer for sentence;
that, contrary to the Constitution of the State of New York and of
the United States, and contrary to his objection and exception,
duly and timely taken in due form of law, he was sentenced to
undergo a cruel and unusual punishment, as appears by a copy of the
pretended judgment, warrant, or mandate hereto annexed and made a
part of this petition, and marked 'Exhibit A,' by virtue of which
such imprisonment or restraint is claimed to be made; that he is
deprived of liberty and threatened with deprivation of life without
due process of law, contrary to the Constitution of the State of
New York and of the United States, and contrary to his objection
and exception thereto, duly and timely taken. The imprisonment is
stated to be illegal because it is contrary to the provisions of
each of said Constitutions."
The warden of the Auburn State Prison made the following
return:
"
First. That I am the duly appointed and acting warden
and agent of the Auburn State Prison, and on the said 11th day of
June, 1889, and before the said writ of habeas corpus
Page 136 U. S. 440
was served upon and came to me, the said William Kemmler,
otherwise called John Hort, was and now is in my custody and
detained by me in the state prison at Auburn, in the State of New
York, under and by virtue of a judgment of the court of oyer and
terminer of the State of New York, held in and for the County of
Erie, on the 14th day of May, 1889, duly convicting the said
William Kemmler, otherwise called John Hort, of murder in the first
degree. A true copy of the judgment roll of the aforesaid
conviction is hereto attached as a part hereof, and marked 'Exhibit
A.' And said William Kemmler, otherwise called John Hort, is also
detained in my custody as such warden and agent, under any by
virtue of a warrant signed by the Hon. Henry A. Childs, the justice
of the Supreme Court before whom the said William Kemmler,
otherwise called John Hort, was, as aforesaid, duly tried and
convicted, and which said warrant was duly issued in pursuance of
the aforesaid conviction, and in compliance with the provisions of
the Code of Criminal Procedure relating thereto, to, a copy of
which said warrant is hereto annexed as a part hereof, and marked
'Exhibit B.'"
"
Second. And I, the said Charles F. Durston, agent and
warden of Auburn State Prison, do make a further return, and
allege, as I am advised and verily believe to be true, that the
said William Kemmler, otherwise called John Hort, was not
sentenced, as hereinbefore set forth, to undergo a cruel and
unusual punishment, contrary to the provisions of the Constitution
of the State of New York and the Constitution of the United
States."
"And I do further allege that the said imprisonment and
restraint of the said William Kemmler, otherwise called John Hort,
and the deprivation of his liberty and the threatened deprivation
of life, are not without due process of law, and are not contrary
to the provisions of the Constitution of the State of New York or
the Constitution of the United States, as alleged in the petition
upon which said writ of habeas corpus was granted."
"I do further allege, as I am advised, that the said judgment of
conviction hereinbefore set forth, and the aforesaid
Page 136 U. S. 441
warrant, and the punishment and deprivation of liberty, and the
threatened deprivation of life, of the said William Kemmler,
otherwise called John Hort, thereunder, are fully warranted by the
provisions of chapter 489 of the Laws of 1888, which is a valid
enactment of the legislature of the State of New York, and it is
not in conflict with or in violation of the provisions of the
Constitution of the State of New York or the Constitution of the
United States."
"And I hold the said William Kemmler, otherwise called John
Hort, under and by virtue of no other authority than as
hereinbefore set forth."
Copies of the indictment of Kemmler, otherwise called Hort, for
the murder of Matilda Zeigler, otherwise called Matilda Hort, the
judgment and sentence of the court, and the warrant to the warden
to execute the sentence were attached to the petition and return.
The conclusion of the warrant, pursuing the sentence, was in these
words:
"Now, therefore, you are hereby ordered, commanded, and required
to execute the said sentence upon him, the said William Kemmler,
otherwise called John Hort, upon some day within the week
commencing on Monday, the 24th day of June, in the year of our Lord
one thousand eight hundred and eighty-nine, and within the walls of
Auburn State Prison, or within the yard or inclosure adjoining
thereto, by then and there causing to pass through the body of him
the said William Kemmler, otherwise called John Hort, a current of
electricity of sufficient intensity to cause death, and that the
application of such current of electricity be continued until he,
the said William Kemmler, otherwise called John Hort, be dead."
Upon the return of the writ before the county judge, counsel for
the petitioner offered to prove that the infliction of death by the
application of electricity as directed
"is a cruel and unusual punishment, within the meaning of the
Constitution, and that it cannot therefore be lawfully inflicted,
and to establish the facts upon which the court can pass as to the
character of the penalty. The Attorney General objected to the
taking of testimony as to the constitutionality of this law on the
ground that the court has no authority to take such
Page 136 U. S. 442
proof. The objection was thereupon overruled, and the Attorney
General excepted."
A voluminous mass of evidence was then taken as to the effect of
electricity as an agent of death, and upon that evidence it was
argued that the punishment in that form was cruel and unusual,
within the inhibition of the Constitutions of the United States and
of the State of New York, and that therefore the act in question
was unconstitutional.
The county judge observed that the
"Constitution of the United States and that of the State of New
York, in language almost identical, provide against cruel and
inhuman punishment, but it may be remarked in passing that with the
former we have no present concern, as the prohibition therein
contained has no reference to punishments inflicted in state courts
for crimes against the State, but is addressed solely to the
national government, and operates as a restriction on its
power."
He held that the presumption of constitutionality had not been
overcome by the prisoner, because he had not
"made it appear, by proofs or otherwise, beyond doubt, that the
statute of 1888 in regard to the infliction of the death penalty
provides a cruel and unusual, and therefore unconstitutional,
punishment, and that a force of electricity sufficient to kill any
human subject with celerity and certainty, when scientifically
applied, cannot be generated."
He therefore made an order dismissing the writ of habeas corpus,
and remanding the relator to the custody of the respondent. From
this order, an appeal was taken to the Supreme Court, which
affirmed the judgment of the county judge. The Supreme Court was of
opinion,
People &c. v. Durston, Warden, &c., 55
Hun. 64, that it was not competent to support the contention of the
relator by proofs
aliunde the statute; that there was
nothing in the constitution of the government or in the nature of
things giving any color to the proposition that, upon a mere
question of fact involved in legislation, the judgment of a court
is superior to that of the legislature itself, nor was there any
authority for the proposition that, in respect to such questions,
relating either to the manner or the matter of legislation, the
decision of the legislature could be reviewed by the
Page 136 U. S. 443
court; and that the presumption that the legislature had
ascertained the facts necessary to determine that death by the mode
prescribed was not a cruel punishment was conclusive upon the
court. And Dwight, J., delivering the opinion, also said:
"We have read with much interest the evidence returned to the
county judge, and we agree with him that the burden of the proof is
not successfully borne by the relator. On the contrary, we think
that the evidence is clearly in favor of the conclusion that it is
within easy reach of electrical science at this day to so generate
and apply to the person of the convict a current of electricity of
such known and sufficient force as certainly to produce
instantaneous, and therefore painless, death."
From this judgment of the Supreme Court an appeal was prosecuted
to the Court of Appeals, and the order appealed from was affirmed.
It is said in the opinion by O'Brien, J.:
"The only question involved in this appeal is whether this
enactment is in conflict with the provision of the state
Constitution which forbids the infliction of cruel and unusual
punishment. . . . If it cannot be made to appear that a law is in
conflict with the Constitution, by argument deduced from the
language of the law itself, or from matters of which a court can
take judicial notice, then the act must stand. The testimony of
expert or other witnesses is not admissible to show that, in
carrying out a law enacted by the legislature, some provision of
the Constitution may possibly be violated."
The determination of the legislature that the use of electricity
as an agency for producing death constituted a more humane method
of executing the judgment of the court in capital cases was held
conclusive. The opinion concludes as follows:
"We have examined this testimony, and can find but little in it
to warrant the belief that this new mode of execution is cruel,
within the meaning of the Constitution, though it is certainly
unusual. On the contrary, we agree with the court below that it
removes every reasonable doubt that the application of electricity
to the vital parts of the human body, under such conditions and in
the manner contemplated by the statute, must result in
instantaneous, and consequently in
Page 136 U. S. 444
painless, death."
At the same term of the Court of Appeals, the appeal of the
relator from the judgment on the indictment against him was heard,
and that judgment affirmed. Among other points made upon that
appeal was this: that the sentence imposed was illegal and
unconstitutional, as being a cruel and unusual punishment; but the
court decided, as in the case of the appeal from the order under
consideration here, that the position was untenable, and that the
act was not unconstitutional because of the new mode adopted to
bring about death.
We find, then, the law held constitutional by the court of oyer
and terminer in rendering the original judgment; by the Supreme
Court and the Court of Appeals in affirming it; by the county judge
in the proceedings upon the writ of habeas corpus; by the Supreme
Court in affirming the order of the county judge; and by the Court
of Appeals in affirming that judgment of the Supreme Court. It
appears that the first step which led to the enactment of the law
was a statement contained in the annual message of the Governor of
the State of New York, transmitted to the legislature January 6,
1885, as follows:
"The present mode of executing criminals by hanging has come
down to us from the dark ages, and it may well be questioned
whether the science of the present day cannot provide a means for
taking the life of such as are condemned to die in a less barbarous
manner. I commend this suggestion to the consideration of the
legislature."
The legislature accordingly appointed a commission to
investigate and report "the most humane and practical method known
to modern science of carrying into effect the sentence of death in
capital cases." This commission reported in favor of execution by
electricity, and accompanied their report by a bill which was
enacted and became chapter 489 of the Laws of 1888. Laws of New
York, 1888, 778. Among other changes, section 505 of the Code of
Criminal Procedure of New York was amended so as to read as
follows:
"§ 505. The punishment of death must, in every case, be
inflicted by causing to pass through the body of the convict a
current of electricity of sufficient intensity to cause death, and
the application of such current must be continued
Page 136 U. S. 445
until such convict is dead."
Various other amendments were made not necessary to be
considered here. Sections 10, 11, and 12 of the act are as
follows:
"§ 10. Nothing contained in any provision of this act applies to
a crime committed at any time before the day when this act takes
effect. Such crime must be punished according to the provisions of
law existing when it is committed, in the same manner as if this
act had not been passed; and the provisions of law for the
infliction of the penalty of death upon convicted criminals, in
existence on the day prior to the passage of this act, are
continued in existence, and applicable to all crimes punishable by
death, which have been or may be committed before the time when
this act takes effect. A crime punishable by death, committed after
the beginning of the day when this act takes effect, must be
punished according to the provisions of this act, and not
otherwise."
"§ 11. All acts and parts of acts inconsistent with the
provisions of this act are hereby repealed."
"§ 12. This act shall take effect on the first day of January,
one thousand eight hundred and eighty-nine, and shall apply to all
convictions for crimes punishable by death committed on or after
that date."
Kemmler was indicted for and convicted of a murder committed on
the 29th day of March, 1889, and therefore came within the statute.
The inhibition of the federal Constitution upon the passage of
ex post facto laws has no application. Section 5, art. 1,
of the Constitution of the State of New York provides that
"[e]xcessive bail shall not be required, nor excessive fines
imposed, nor shall cruel and unusual punishments be inflicted, nor
shall witnesses be unreasonably detained."
The Eighth Amendment to the Federal Constitution reads thus:
"Excessive bail shall not be required, nor excessive fines imposed,
nor cruel and unusual punishments inflicted." By the Fourteenth
Amendment, it is provided that
"All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein they reside. No State shall make or
enforce any law which shall abridge the privileges or
immunities
Page 136 U. S. 446
of citizens of the United States, nor shall any State deprive
any person of life, liberty, or property without due process of
law, nor deny to any person within its jurisdiction the equal
protection of the laws."
It is not contended, as it could not be, that the Eighth
Amendment was intended to apply to the States, but it is urged that
the provision of the Fourteenth Amendment which forbids a State to
make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States is a prohibition on the
State from the imposition of cruel and unusual punishments, and
that such punishments are also prohibited by inclusion in the term
"due process of law." The provision in reference to cruel and
unusual punishments was taken from the well known act of parliament
of 1688, entitled "An act for declaring the rights and liberties of
the subject, and settling the succession of the Crown," in which,
after rehearsing various grounds of grievance, and, among others,
that
"excessive bail hath been required of persons committed in
criminal cases, to elude the benefit of the laws made for the
liberty of the subjects, and excessive fines have been imposed, and
illegal and cruel punishments inflicted,"
it is declared that "excessive bail ought not to be required,
nor excessive fines imposed, nor cruel and unusual punishments
inflicted."
* Stat. 1 W. &
M., c. 2. This declaration of rights had reference to the acts of
the executive and judicial departments of the government of
England, but the language in question, as used in the Constitution
of the State of New York, was intended particularly to operate upon
the legislature of the State, to whose control the punishment of
crime was almost wholly confided. So that, if the punishment
prescribed for an offense against the laws of the State were
manifestly cruel and unusual as burning at the stake, crucifixion,
breaking on the wheel, or the like, it would be the duty of the
courts to adjudge such penalties to be within the constitutional
prohibition. And we think
Page 136 U. S. 447
this equally true of the eight amendment, in its application to
Congress.
In
Wilkerson v. Utah, 99 U. S. 130,
99 U. S. 135,
Mr. Justice Clifford, in delivering the opinion of the Court,
referring to Blackstone, said:
"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."
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. The courts of New York held that the mode
adopted in this instance might be said to be unusual because it was
new, but that it could not be assumed to be cruel in the light of
that common knowledge which has stamped certain punishments as
such; that it was for the legislature to say in what manner
sentence of death should be executed; that this act was passed in
the effort to devise a more humane method of reaching the result;
that the courts were bound to presume that the legislature was
possessed of the facts upon which it took action; and that, by
evidence taken
aliunde the statute, that presumption could
not be overthrown. They went further, and expressed the opinion
that, upon the evidence, the legislature had attained by the act
the object had in view in its passage. The decision of the state
courts sustaining the validity of the act under the state
Constitution is not reexaminable here, nor was that decision
against any title, right, privilege, or immunity specially set up
or claimed by the petitioner under the Constitution of the United
States.
Treating it as involving an adjudication that the statute was
not repugnant to the federal Constitution, that conclusion was so
plainly right that we should not be justified in allowing
Page 136 U. S. 448
the writ upon the ground that error might have supervene
therein. The Fourteenth Amendment did not radically change the
whole theory of the relations of the state and federal governments
to each other, and of both governments to the people. The same
person may be at the same time a citizen of the United States and a
citizen of a State. Protection to life, liberty, and property rests
primarily with the States, and the amendment furnishes an
additional guaranty against any encroachment by the States upon
those fundamental rights which belong to citizenship, and which the
state governments were created to secure. The privileges and
immunities of citizens of the United States, as distinguished from
the privileges and immunities of citizens of the States, are indeed
protected by it; but those are privileges and immunities arising
out of the nature and essential character of the national
government, and granted or secured by the Constitution of the
United States.
United States v. Cruikshank, 92 U. S.
542;
Slaughter-House
Cases, 16 Wall. 36. In
Hurtado v.
California, 110 U. S. 516,
110 U. S. 534,
it is pointed out by Mr. Justice Matthews, speaking for the Court,
that the words "due process of law," as used in the Fifth
Amendment, cannot be regarded as superfluous, and held to include
the matters specifically enumerated in that article; and that, when
the same phrase was employed in the Fourteenth Amendment, it was
used in the same sense, and with no greater extent. As due process
of law in the Fifth Amendment referred to that law of the land
which derives its authority from the legislative powers conferred
on Congress by the Constitution of the United States, exercised
within the limits therein prescribed, and interpreted according to
the principles of the common law, so, in the Fourteenth Amendment,
the same words refer to that law of the land in each State which
derives its authority from the inherent and reserved powers of the
State, exerted within the limits of those fundamental principles of
liberty and justice which lie at the base of all our civil and
political institutions. Undoubtedly the Amendment forbids any
arbitrary deprivation of life, liberty, or
Page 136 U. S. 449
property, and secures equal protection to all under like
circumstances in the enjoyment of their rights; and, in the
administration of criminal justice, requires that no different or
higher punishment shall be imposed upon one than is imposed upon
all for like offenses. But it was not designed to interfere with
the power of the State to protect the lives, liberties, and
property of its citizens, and to promote their health, peace,
morals, education, and good order.
Barbier v. Connolly,
113 U. S. 27. The
enactment of this statute was, in itself, within the legitimate
sphere of the legislative power of the State, and in the observance
of those general rules prescribed by our systems of jurisprudence;
and the Legislature of the State of New York determined that it did
not inflict cruel and unusual punishment, and its courts have
sustained that determination. We cannot perceive that the State has
thereby abridged the privileges or immunities of the petitioner, or
deprived him of due process of law.
In order to reverse the judgment of the highest court of the
State of New York, we should be compelled to hold that it had
committed an error so gross as to amount in law to a denial by the
State of due process of law to one accused of crime, or of some
right secured to him by the Constitution of the United States. We
have no hesitation in saying that this we cannot do upon the record
before us. The application for a writ of error is denied.
* In the "Body of the Liberties of the Massachusetts Colony in
New England" of 1641, this language is used: "For bodillie
punishments we allow amongst us none that are inhumane, Barbarous
or cruel." Colonial Laws of Massachusetts (1889), p. 43.