The provision of the Eighth Amendment that "excessive bail shall not be required, nor excessive fines imposed, nor cruel .and unusual punishments inflicted " has given rise to few adjudications in the Supreme Court.
86 For further discussion of the Fourth Amendment see the article of A. A. Bruce, "Arbitrary Searches and Seizures" in The Greenbag, XVIII. 273, 1906. The general law relating to the issuance of search warrants is excellently stated by Cooley in the Constitutional Limitations (7th ed., 429), as follows: "In the first place they are only to be granted in the cases expressly authorized by law; and not generally in such cases until after a showing made before a judicial officer, under oath, that a crime has been committed, and that the party complaining has reasonable cause to suspect that the offender, or the property which was the subject or instrument of the crime, is concealed in some specified house or place. And the law, in requiring a showing of reasonable cause for suspicion, intends that evidence shall be given of such facts as shall satisfy the magistrate that the suspicion is well founded; for the suspicion itself is no ground for the warrant except as the facts justify it. In the next place, the warrant which the magistrate issues must particularly specify the place to be searched and the object for which the search is to be made. . . . The warrant is not allowed lor the purpose of obtaining evidence of an intended crime; but only after lawful evidence of an offense actually committed. Nor even then is it allowable to invade one's privacy for the sole purpose of obtaining evidence against him, except in a few special cases where that which is the subject of the crime is supposed to be concealed, and the public or the complainant has an interest in it or in its destruction. Those special cases are familiar, and well understood in the law. Search-warrants have heretofore been allowed to search for stolen goods, for goods supposed to have been smuggled into the country in violation of the revenue laws, for implements of gaming or counterfeiting, for lottery tickets or prohibited liquors kept for sale contrary to law, for obscene books or papers kept for sale or circulation, and for powder or other explosives and dangerous material so kept as to endanger the public safety.
The fact that the method of administering the death penalty, for example, by electrocution, is new, does not bring it within the constitutional prohibition, unless it also inflicts what amounts to lingering torture. "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." 88
The infliction of a heavier penalty upon a person convicted of felony who has before been convicted of felony, is not the imposition of a cruel and unusual punishment.89
In the case of Weems v. United States decided May 2, 1910, is probably the most interesting discussion which the prohibition of cruel and unusual punishments has received by the Supreme Court. The report of this case has come to hand too late for an adequate presentation here of the points or reasoning involved. It may, however, be said that the case is significant, or potential of future importance, in that it recognizes an authority in the courts, derivable from the Eighth Amendment, to hold unconstitutional punishments, legislatively provided, which, in the opinion of the court, are unduly severe. The court thus held that the constitutional inhibition applies not only when a mode of punishment is provided for, which, in itself, is cruel or unusual, but where a penalty, not in itself cruel or unusual becomes such by being unduly severe. Thus, as is said by Justice White in a dissenting opinion, a doctrine is declared which "limits the legislative discretion in determining to what degree of severity an appropriate or usual mode of punishment may, in a particular case, be inflicted, and therefore endows the courts with the right to supervise the exercise of legislative discretion as to the adequacy of punishment."
A statute which should permit the breaking and entering a man's house, and the examination of hooks and papers with a view to discover the evidence of crime, might possibly not be void on constitutional grounds in some other cases; but the power of the legislature, to authorize a resort to this process is one which can properly be exercised only in extreme cases, and it is better oftentimes that crime should go unpunished than that the citizen should be liable to have his premises invaded, his desks broken open, his private books, letters, and papers exposed to prying curiosity, and to the misconstructions of ignorant and suspicious persons, - and all this under the direction of a mere ministerial officer, who brings with him such assistants as he pleases, and who will select them more often with reference to physical strength and courage than to their sensitive regard to the rights and feelings of others. To incline against the enactment of such laws is to incline to the side of safety."
87 Ex parte Kemmler, 136 U. S. 436; 10 Sup. Ct. Rep. 930; 34 L. ed. 519.
88 Ex parts Kemmler. 136 U. S. 436; 10 Sup. Ct. Rep. 930; 34 L. ed. 519. See also Wilkerson v. Utah, 99 U: S. 130; 25 L. ed. 345.
89 McDonald v. Massachusetts, 180 U. S. 311; 21 Sup. Ct. Rep. 389; 45 L. ed. 542.
After an extended review of the authorities, Justice White summarizing his view of the constitutional provision says: "In my opinion, the review which has been made demonstrates that the word cruel, as used in the amendment, forbids only the lawmaking power, in prescribing punishment for crime and the courts in imposing punishment from inflicting unnecessary bodily suffering through a resort to inhuman methods for causing bodily torture, like or which are of the nature of the cruel methods of bodily torture which had been made use of prior to the bill of rights of 1689, and against the recurrence of which the word cruel was used in that instrument.
"In my opinion the previous considerations also establish that the word unusual accomplished only three results: First, it primarily restrains the courts when acting under the authority of a general discretionary power to impose punishment, such as was possessed at common law, from inflicting lawful modes of punishment to so unusual a degree as to cause the punishment to be illegal because to that degree it cannot be inflicted without express statutory authority; second, it restrains the courts in the exercise of the same discretion from inflicting a mode of punishment so unusual as to be impliedly not within its discretion and to be consequently illegal in the absence of express statutory authority; and, third, as to both the foregoing it operated to restrain the lawmaking power from endowing the judiciary with the right to exert an illegal discretion as to the kind and extent of punishment to be inflicted."