
    The People ex rel. William Kemmler, Appellant, v. Charles F. Durston, Agent and Warden of Auburn Prison, Respondent.
    The provisions of the Code of Criminal Procedure (§§ 491,492, 503, 504, 505, 506,507,508 and 509, as amended by chap. 489, Laws of 1888) changing the mode of inflicting the death penalty do not upon their face, nor in their general purpose and intent, violate any provision of the Constitution.
    
      It seems, that under the provision of the state Constitution (Art. 1, § 5) forbidding the infliction of cruel and unusual punishments, the courts have power to declare void any legislative acts prescribing punishment for crime in fact cruel and unusual.
    The legislature, however, has power to change the manner of inflicting the death penalty, this is not a change of punishment, but simply of the mode.'
    
      Whether the use of electricity as an agency for producing death constituted a more humane method of execution than that formally used was a question for the legislature, and. its determination in regard thereto is conclusive.
    The courts have no power to take proof as to the constitutionality of a statute, and extraneous testimony either of experts or other witnesses is not admissible to show that, in carrying it out, some provision of the Constitution may be violated. If it cannot be made to appear that the statute is unconstitutional by argument deduced from the language of the law itself, or from matter of which the court can take judicial notice, it must stand.
    Upon a return to a writ of habeas corpus where it is shown that the relator has been sentenced and is detained under the process of a court of competent jurisdiction, it is the duty of the court to remand him unless it be shown that the trial court was without jurisdiction to pass the sentence. Reported below, 55 Hun, 64.
    
    (Argued February 35, 1890 ;
    decided March 21, 1890.)
    Appeal from order of the General Term of the Supreme Court in the fifth judicial department, made October 1, 1889, affirming an order of the county judge of Cayuga county, dismissing a writ of habeas corpus sued out by relator and remanding him to the custody of defendant.
    The facts, so far as material, are set forth in the opinion.
    
      W. Bnrlte Coehran for appellant.
    The constitutional inhibition against cruel and unusual punishments renders any law passed by the legislature in violation of its provisions, unconstituional and void. (3 Hallam’s Const. History; Smollett’s History of England, chap. 1; Wilkeson v. Utah, 9 Otto, 130; 4-Black. Comm. 11; People v. Felton, 3 Howell’s State Trials, 370; Countess of Shrewsbury’’s Case, 2 id. 674; 3 Jefferson’s Works, 4, 201; People v. Allin, 42 N. Y. 378.) It being-conceded that the infliction of the penalty will expose the relator to the risk of torture, the sentence is in violation of the Constitution, and, therefore, void. (People v. Harting, 22 N. Y. 166; Stewart v. Palmer, 74 id. 188.) The act is unconstitutional, because upon its face it provides for the infliction of an unusual penalty. (Hume’s History of England, chap. 71; Burnett’s History of His Own Times, 803, 812, 852 [Onslow’s note]; Macauly’s History of England, chap. 10; 10 Lingard’s History of England, eliap. 4; Lords & Com.. Journal, Feb. 6, 1689; 4 Black. Comm. 327; 25 Edward, 111, chap. 2; 1 Edward VI. chap. 12; 1 Phillip & Mary, chap. 1, 10; 13 Eliz. chap. 2; Westminster, 13 Edward I. chap. 9; 8 Henry VI. chap. 12; 21 Jac. 1, chap. 6; 5 Eliz. chap. 9; 11 Henry IV. 5 Henry IV. chap. 5, 22 & 23 Car. 11, chap. 1, Westminster, 1; 3 Edward I. chap. 13; Westminster, 2; 13 Edward I. chap 34; 18 Eliz. chap. 7; 8 Henry VI. chap. 6 ; 21 Henry VIII. chap. 1; 2 Edward VI. chap. 12; 4 & 5 Phillip & Mary, chap. 4; 1 Edward VI. chap. 12; 18 Eliz. chap. 7; 9 Henry, 1; 1 Edward VI. chap. 12; 2 & 3 Edward VI. chap. 33; 31 Eliz. chap. 12;. 18 Edward VI. chap. 3; 23 Henry VIII. chap. 1; 5 Eliz. chap. 14; Hume’s History of England, chap. 4, appendix 1; Felton’s Case, 3 State Trials, 370 ; Smollett’s History of England, chap. 1.)
    
      Gliarles F. Tabor, attorney-general, for respondent.
    The constitutional prohibition against the infliction of cruel and unusual punishment must be ineffectual, being a prohibition upon the judicial power, the exercise of authority by courts of criminal jurisdiction, and not, in any sense, a restriction upon legislative power. (Stat. of Wm. & Mary, chap. 2, §§ 9, 10, 11, 12; 1 Macaulay, 487, 488, 497, 569, 643, 649, 650, 651, 664; 2 State Tr. 375,447,450,474,483, 878, 1315, 1356; 4 Black. Comm. 440.) The- bill of rights did not change the law; it only declared what the law of England, as to the rights of the subject, was. (May’s Law of Parliament, 5 ; Done v. People, 5 Park. Crim. Rep. 364, 383; Jackson v. Wood, 2 Cow. 819; Barker v. People, 3 id. 686, 701; Barron v. Baltimore, 7 Pet. 243; Pervear v. Commonwealth, 5 Wall. 475, 480; U. S. Const, art. 2, § 8; id. art. 3, § 3; id. art. 1, § 8 ; N Y. Conv. 1821, 49, 87, 94; id. 1846 [Atlas ed.] 196, 1062.) The courts and text-writers have adopted the view of the Constitutional prohibition above contended for. (In re Bayard, 25 Hun, 546 ; Wilkinson v. Utah, 99 U. S. 130, 135, 136 ; Story on Const. Lim. 328, 329 2 id. § 1930.) Even if the language of the fifth subdivision •of section 1 of article 1 of the state Constitution should he ■construed as applicable to the legislative powe , it is to be regarded only as a maxim, the interpretation of which rests with the legislature alone. (In re Bayard, 25 Hun, 546; Commonwealth v. Hitchings, 5 Gray, 482, 486; Story on Const. Lim. § 1342; Martin v. Mott, 12 Wheat. 19 ; Tiedman on Police Power, §§ 10-12; Powll v. Pennsylvania, 127 (U. S. 686; People v. Arensburg, 103 N. Y. 399 ; People v. Gillson, 109 id. 389; Embury v. Connor, 3 id. 511, 517; Taylor v. Porter, 4 Hill, 140; Campbell v. Evans, 45 N. Y. 356; Rockwell v. Nearing, 35 id. 302-308 ; In re McMahon, 102 Id. 176, 187; 31 id. 574, 584.) Every presumption is in favor of the validity of legislative acts, and they are to be upheld unless there is a substantial departure from the organic law. (Board of Excise v. Barrie, 34 N. Y. 666, 668; People ex rel. v. Briggs, 59 id. 553, 558; People v. H. Ins. Co. 92 id. 328, 344; Newel v. People, 7 id. 9 ; People ex rel. v. Albert-son, 55 id. 50, 54; In re E. R. R. Co., 70 id. 327, 432; People v. Gillson, 109 id. 389, 397; People v. King, 110 id. 418; People ex rel. v. D'Oench, 111 id. 359; People v. Budd, 117 id. 1; Ogden v. Saunders, 12 Wheat. 270.) The act is constitutional upon its face. (People v. Super., 43 N. Y. 130; H. I. Co. v. Alger, 54 id. 175; People v. N. Y. & M. B. R. R. Co., 84 id. 568; United States v. U. P. R. R. Co., 91 U. S. 79 ; Platt v. U. P. R. R. Co., 99 id. 59; Laws of 1886, chap. 352; Laws of 1887, chap. 7.) Proof aliunde to establish the unconstitutionality of a statute is entirely incompetent. (Code Civ. Pro. §§ 2031, 2039 ; Cronin v. People, 82 N. Y. 323; In re E. R. R. Co., 70 id. 327, 328, 351; People v. Albertson 55 id. 50; People v. Draper, 15 id. 532, 545, 555; Talbot v. Hudson, 16 Gray, 417, 422; Warner v. Beers, 23 Wend. 125; People v. Devlin, 33 N. Y. 280 ; Judson v. Plattsburgh, 3 Dill. 181; People v. N. Y. C. R. R. Co., 13 N.Y. 78; Waller v. Haines, 20 Wend. 555, 562; Holmes v. Corley, 31 N. Y. 289; McCluskey v. Cromwell, 11 id. 593, 601.) The only question that can be gone into on the return of the writ is as to the jurisdiction of the court that pronounced the judgment.
      People ex rel. v. Warden, 100 N. Y. 20; People ex rel. v. Liscombe, 60 id. 559; People v. McLeod, 1 Hill, 377; 3 id. 658; People ex rel. v. Kelly, 24 N. Y. 74.) If the method of infliction of the death penalty specified in the act of 1888 be-unconstitutional, the amendments of the Code of Criminal Procedure proposed by such act, which have in view a new form of capital punishment, are absolutely void and ineffectual to change the law as it existed prior to the passage of the act of 1888, and made no change therein, and did not repeal any part thereof providing for the infliction of the death penalty. An unconstitutional statute is no law. (Cooley on Const. Him. 3, §§ 186, 188; Ex parte Davis, 21 Fed. Rep. 396 ; Smith v. Schilling, 95 N. Y. 131; 36 id. 449, 451; Harbeck v. Mayor,, 10 Bos. 366; Sullivan v. Adams, 3 Gray, 476; Shepardson v. M. & B. R. R. Co., 6 Wis. 605, 615; People v. Tiphane, 13 How. Pr. 74; People ex rel. v. Kelley, 97 N. Y. 212, 215 ;. People ex rel. v. Gilbert, 96 id. 631; People ex rel v. Jacobs, 66 id. 8, 10 ; People ex rel. v. Liscombe, 60 id. 559.)
   O’Brien, J.

The respondent is the agent and warden of the state prison at Auburn, and the relator being in his custody applied for a writ of habeas corpus to inquire into the cause of detention, which was made returnable by the officer granting it before the county judge of Cayuga county. The relator in his, petition for the writ stated that the cause or pretense of the imprisonment complained of was that after his indictment and trial for the crime of murder in the first degree, and his conviction thereof in the Court of Oyer and Terminer, he was sentenced by that court to undergo a cruel and unusual punishment for that crime, contrary to the Constitution of this state and of the United States, and was threatened with deprivation of life without due process of law, by reason of such illegal sentence and judgment of the court. The writ was duly served upon the respondent, who made return thereto that he-detained the relator in his custody as agent and warden of tlm prison by virtue of the judgment of the Court of Oyer and Terminer held in the county of Erie, whereby the relator was, duly convicted of the crime of murder in the first degree, and ■also by virtue of a warrant duly delivered to him under the hand and seal of a justice of the Supreme Court presiding- at the said Court of Oyer and Terminer where the relator was ■convicted, which recited the indictment, trial, conviction and ■sentence of the relator, and directed the respondent to carry the same into effect in these words: “ How, therefore, you are hereby ordered, commanded and required to execute 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.” This command and ■direction to the warden was in accordance with the sentence actually passed upon the relator after conviction, in these words : The sentence of the court is that within the week ■commencing on Monday the 24tli 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, the defendant suffer the punishment of death, to be inflicted by the application of electricity, as provided by the Oode of Criminal Procedure of the state of Hew York, and that in the mean time the defendant be removed to, and until the infliction of such pimishment be kept in solitary confinement in, said Auburn state prison.”

On the return day of the writ the relator and the respondent ■appeared by counsel before the county judge, and by agreement of counsel the production of the relator, pursuant to the command of the writ, was waived. Counsel for the relator then ■offered to prove that the infliction of the penalty named in the •sentence, namely death by the application of electricity, is a cruel and unusual punishment within the meaning of the Constitution, and cannot, therefore, he lawfully inflicted. The attorney-general objected, on the ground that the court had no authority to take proof in regard to the constitutionality of the statute. This objection was overruled by the county judge, and the counsel for the respective parties agreed that a referee be appointed for the purpose of taking the testimony in pursuance of the offer.

In this way a mass of testimony was given upon both sides, certified by the referee to the county judge and embraced in the extended record before us. The result was that after a hearing upon the report of .the referee the county judge dismissed the writ and remanded the relator to the custody of the respondent. When it appeared, from the return of the respondent, that he retained the relator in custody under and by virtue of the judgment of a court of competent jurisdiction wherein the relator was convicted of murder, it was the duty of the county judge to dismiss the writ and remand the relator to the custody of the agent and warden of the prison, unless it could be shown that the Court of Oyer and Terminer was without jurisdiction to pass the sentence which it did. (People ex rel. v. Warden, etc., 100 N. Y. 20; People ex rel. v. Liscomb, 60 id. 559.)

It is not denied that the court had such jurisdiction providing that the legislature had power under the Constitution to enact chapter 489 of the Laws of 1888, entitled “An act to amend sections 491, 492, 503, 504, 505, 506, 507, 508, 509 of the Code of Criminal Procedure, in relation to the infliction of the death penalty, and to provide means for the infliction of such penalty.” Prior to the passage of this statute the punishment by death in every case was to be inflicted by hanging the convict by the neck until he was dead. This provision of law was changed by the amendments of the Code above referred to, and now the section (505) reads as follows: “ The punishment by 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 until such convict is dead.”

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. (Const, art. 1, § 5.) This provision was borrowed from the English statute passed in the first year of the reign of William and Mary, being chapter 2 of the statutes of that year, entitled “An act declaring the rights and liberties of the subject, and settling the succession of the crown,” usually known as the Bill of Bights. It enacts, among other things, that “excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” When this statute was made part of the Constitution of the United States, the word “ shall ” was substituted for the word “ ought,” and in this form it first appears in the Constitution of this state adopted in 1846. It is not very clear whether the provision as it stands in our Constitution was intended as an admonition to the legislature and the judiciary, or as a restraint upon legislation inflicting punishment for criminal offenses. When the statute referred to was enacted in England it was not intended as a check upon the power of parliament to prescribe such punishment for crime as it considered proper. Its enactment did not change any law then existing, nor did it mitigate the harshness of criminal punishments in that country, as is shown by the fact that for more than half a century after it appeared on the statute book, a long catalogue of offenses were punishable by death, many of which were not visited with that extreme penalty before the Bill of Bights was passed. (2 Blackstone’s Comm. chap. 33, p. 440.)

The history of the times in which this provision assumed the form of a law, shows that it was, after all, intended to be little more than a declaration of the rights of the subject. The English people were about to place upon the throne, made vacant by revolution, a foreign prince, whose life had been spent in military pursuits, rather than in the study of constitutional principles and the limitations of power, as then understood in the country he was to govern. This was considered a favorable oportunity to enact, in the solemn form of a statute, a declaration of the principles upon which the people desired the government to be conducted; but whatever the purpose of the statute was in the country where it originated, we think that its presence in the Constitution of this state confers power upon the courts to declare void legislative acts prescribing punishments for crime, in fact cruel and, unusual. This is the power that is invoked against the amendments to the Code of Criminal Procedure above referred to by the learned counsel for the relator, in an argument addressed to us, interesting on account of its great political and scientific research. We entertain no doubt in regard to the power of the legislature to change the manner of inflicting the penalty of death. The general power of the legislature over crimes, and its power to define and punish the crime of murder is not and cannot be disputed. The amendments prescribed no new punishment for the offense. The punishment now, as before, is death. The only change'made is in the mode of carrying out the sentence. The infliction of the death penalty in any manner must necessarily be accompanied with what might be considered in this age, some degree of cruelty, and it is resorted to only because it is deemed necessary for the protection of society. The act on its face does not provide for any other or additional punishment.

In behalf of the relator, this legislation is assailed in no other way than by attempting to show that the new mode of carrying out a death sentence subjects the person convicted to the possible risk of torture and unnecessary pain. This argument would apply with equal force to any untried method of execution, and, when carried to its logical results, would prohibit the enforcement of the death penalty at all. Every act of the legislature must be presumed to be in harmony with the fundamental law until the contrary is clearly made to appear. (Metropolitan Board of Excise v. Barrie, 34 N. Y. 666, 668; People ex rel. v. Briggs, 50 id. 553, 558; People v. Home Ins. Co., 92 id. 328, 344; People ex rel. v. Albertson, 55 id. 50, 54; People v. Gillson, 109 id. 389, 397; People v. King, 110 id. 418.)

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. (People v. Albertson, supra; People v. Draper, 15 N. Y. 532 ; Matter of N. Y. E. R. R Co., 70 id. 327.)

If the act upon its face is not in conflict with the Constitution, then extraneous proof cannot be used to condemn it. The history and origin of the enactment we are now considering may very properly be referred to to test its validity, and ascertain its time intent and proper interpretation. It has been said that courts will jflace themselves in the situation of the legislature, and by ascertaining the necessity and probable objects of the passage of a law, give effect to it, if possible, according to the intention of the law makers, when that can be done without violating any constitutional provision. (People v. Supervisors, 43 N. Y. 130.) Chapter 352 of the Laws of 1886, entitled “An act to authorize the appointment of a commission to investigate and report to the legislature the most' humane and approved method .of carrying into effect the sentence of death in capital cases,” provided for the appointment of a commission consisting of three eminent citizens, who were named therein, and required them to investigate and report to the legislature on or before the fourth Tuesday of January, 1887, the most humane and practical method known to modern science of carrying into effect the sentence of death in capital cases. To enable this commission to make its investigation most thorough, the legislature extended the time for it to report for a year longer by chapter 7 of the Laws of 1887. This commission early in the legislative session of 1888 made its report, accompanied with a proposed bill which the legislature afterward and during the same session enacted, and this is the statute which is now attacked in behalf of the relator as an unauthorized expression of the legislative will. The legislature proceeded to change the mode of executing the sentence of death with care and caution and unusual deliberation. It would be a strange result indeed if it could now be held that its efforts to devise a more humane method of carrying out the sentence of death in capital cases, have culminated in the enactment of a law in conflict with the provisions of the Constitution prohibiting cruel and unusual punishments. Whether 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 a question for the determination of the legislature. It was a question peculiarly within its province, and the means at its command for ascertaining whether such a mode of producing death involved cruelty, within the meaning of the constitutional prohibition, were certainly as . satisfactory and reliable as any that are consistent with the limited functions of an appellate court. The determination of the legislature of this question is conclusive upon this court. The amendment to the Code of Criminal Procedure changing the mode of inflicting the death penalty, does not, upon its face, nor in its general purpose and intent, violate any provision of the Constitution. The testimony taken by the referee, while not available to impeach the validity of the legislation, may, we think, be regarded as a valuable collection of facts and opinions touching the use of electricity as a means of producing death, and for that reason as part of the argument for the relator, but nothing more. 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 painless death.

The order appealed from should be affirmed.

All concur.

Order affirmed.  