Opinion of the Court. The 19th of May passed without hearing this motion. On the 20th it came up and and was heard. Mr. Roger M. Sherman for the petitioner. Mr. Charles F. Tabor, Attorney General of the State of New York, opposing. 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 argu ment. 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, Opinion of the Court. 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 pretence 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 constitutions 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 Opinion of the Court. 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 and 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, 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 judg ment of conviction herein before set forth, and the aforesaid Opinion of the Court. 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 herein before 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 enclosure 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 Opinion of the Court. 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 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 |