Foote v. State

Stone, J., delivered the opinion of the Court. This case comes before us upon a writ of error from the Criminal Court of Baltimore City. The plaintiff in error, Foote, was indicted in that Court under the Act of 1882, ch. 120, for brutally assaulting and heating his. wife, found guilty and sentenced to imprisonment in jail, for sixty days, and to he whipped seven lashes by the sheriff. He assigns for causes of error that the Act of 1882, chap. 120, is unconstitutional (in so far as it imposes the penalty of whipping) for the following reasons: 1st.

That it is in contravention of the 16th and 25th Articles of the Bill of Rights of Maryland, and the 8th Amendment to the Constitution of the United States. 2nd. That it is uncertain and indefinite as to the offence. 3rd. That it is partial in its provisions, and intended for a special class of the community. 4th. That it is uncertain and indefinite as to the mode and manner of the infliction of the punishment of whipping. 5th.

That the title does not properly describe the subject of the law. Since the Act of 1852, chap. 63, the usual and only proper mode of testing the constitutionality of an Act of Assembly under which a party is indicted, is by demurrer to the indictment. But as in this case the Attorney-General has, in his brief, discussed the questions- raised in the record, and expressed the opinion that these questions ought to he settled, we will proceed to examine them. Before we do so, however, we may say— That this Court has uniformly held, that the Acts of the Legislature are always presumed to he constitutional, and ²⁶⁷ to justify them in declaring an Act void by reason of its-unconstitutionality, they must he satisfied that it is in direct and clear conflict with the Constitution.

They have no power to declare it void, because it conflicts with their opinion of expediency or justice. The remedy for legislation of that character is with the Legislature and not with the Courts. The eighth amendment to the Constitution of the United States is not a restraint upon, and does not apply to, the Legislature of a State, but only to the National Legislature,, and, therefore, has no application to this case. Pervear vs. Commonwealth, 5 Wallace, 479.

The terms “ cruel and unusual pains and penalties,” and “cruel or unusual punishment,” have been incorporated in each successive Constitution in this State from 1776 to the present time. That the punishment of whipping was not considered a “cruel or unusual punishment,” and, therefore, coming within the prohibition of the Constitution, is most conclusively shown by the fact that the punishment by whipping was recognized by the statute law of the State under all these Constitutions, certainly down to the Constitution of 1864, and then only obliterated from the statute book, not by direct repeal, but by force of the constitutional amendment abolishing slavery. It is true, that under some of the later Constitutions the punishment by the laws was confined to negroes and slaves, but the words “ cruel or unusual ” coveréd all cases, of punishment, and were as applicable to negroes and slaves as to whites. At the time of the adoption of the Bill of Eights in 1776, and for a long time before, and for a long time thereafter, the punishment of whipping for certain offences was imposed upon whites and blacks alike.

"We are not dealing with the expediency, justice, or efficacy of this punishment, hut only with the true intepretation of the terms of the Constitution under which we live. When, therefore, we find that the people who made this ²⁶⁸ Constitution, and who must he presumed to understand the meaning of the terms they use, have, from, the time these words were first incorporated, in 1776 down to 1882, a period of more than a hundred years, through the several successive. Legislatures, uniformly held that the punishment of whipping was not included in that class which the Constitution forbids, we. should violate the plainest principles of the construction of statutes now to decide otherwise. We have not only the contemporaneous, but the continued, exposition of the meaning of the words in this long course of legislative construction, upheld and continually enforced by the Courts; in the imposition of the