New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1860-10-16

In another column will be found short para
graph from The Albany Erenirg Joarnat profess
ING to give the points of decision just made by
the Court of Appeals in Mrs. lartung's case,
granting her a now trial. AZ the writ of error I'M
der which this case came before the Court OF APP
peals was issued, if we mistake net, before the
passage of the late law the subject OF capital
punishment, We do not exactly understand how
the decision of the Court could have turned
upon ibe construction of that act more especially
under the doctrine said to be laid down by the
Court, that az to Mrs HartuDg and Others who, at
the time of it's passage stood convicted of murder
that sct was unconstitutional, null and void, be-
cause it prescribed new, and according 10 the
views Of the Court, an increased penalty, super
adding 10 the punishment Of death years lmpris-
OF me Dt at hard labor
If as to Mrs. HsrtuDg the act was null and Voia'
what had her case to do with the construction OF IT,
or with her right to new tria'
So far ms We can Judge from the account of the
decision given BY The Ereniag Journal the objec.
tons taken TO the act Independently of its aPplica
tion to persons already sentenced are two: first,
that it does not prescribe BY what particular
means, whether hanging or otherwise, the sen.
tence Of death shall be executed; and, secondly,
the discretion which il allows to the Governor as
to the time Ct execution after the years imprison-
meIt shall have expired. Now, whatever weight
might have been due to this latter objection, had it
been urged in the Legislature, it does not seem to
furnish any reason why the Courts should decline to
A. e. Ahn oil lam
similar discretion appertained to the Governor, as
he had the authority to postpone the execution OF
the sentence from time to time as be might see fit.
As 70 the other objection, the reply seems to us
to be sufficient, that in the absence of any statute
provision on the subject the old common-law usage
of hanging survives. Upon this point the Court
suggests that while repeating statute in affirm
ance of the common law, the Legislature can hardly
be supposed TO Intend still to leave the common
law in force But why not-especialy in case
ike this, where the repeal had evidently quite
different object in view from that which the Court
Insists upon as one of its incidental Iesultsl
Agaio, it is urged that the commOn-law punish
ment for an oaen,e like that of Mrs. Harfung-
namely, the murder OF husband BY his wife
vas burning at the stake. But TINS seems 10 us
mere fetch. The old English common law did,
indeed, recognize in the killing of husband by
his wife special offense, known as "petit trea-
son"-for which it prescribed the punishment
referred to. But, according to well-knOwn doc
trine that no part of the English common law is to
be received as part Of our common law unless 1t
was actually adopted and acted upon by the
Courts, it would remain to be shown that the
ofIense of petit treason has ever been recog-
Dized here. Even if that were done, the decisive
objection would still remain, that Mrs. Hsrtung
was not convicted of petit treason, but of murder,
ard that by the common law the punishment Of
murder is not burning, but banging.
1t is to be hoped that the decision of the Court of
Appeals will shortly be published at length, when
we shall be in better position to appreciate the
reasoning Of the Court.