The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1875-03-17
BY TELEGRAPH.
MATTERS IN MAINE,
Wagner and Gordon.
The Hearing at Rockland.
Argument of ex.Judge TapIey on the
ConstitutionaIity of the Law Requir-
ing the Governor to Fix the Time Oh
Execution.

RocKLAND March 16.-The hearing on the
petition for Injunction to restrain the execution
of Wagner began in the Supreme Judicial
Court this evening" large number being pres
ent. Judge Tapley appeared for wagner
d. N Mortland, Esq, for Gordon, and Geo. u
Yeaton, County Attorney of York county, 1or
the state Gordon's case being first on the
docket, Mr.. Yeaton said it should be the hrst
proceeded with, but Mr.. Mortland said Gordon
would abide the decision reached in Wagners
chse. as they were similar. Judge Tap.ey then
read the petition and proceeded with his argu-
ment, which was an able presentation OF the
case, and consumed two hours and hall.
Three warrants were put into the case, when
were described it being claimed that the hrst
warrant, though dated Oct. I'd, 1874, was not
issued till Jan. 10Th or Goth, 1875.
Judge Tapley claimed that by the English
statutes, which were the common law of this
country, the day of execution was required to
be stated in every sentence on conviction OF
murderer, and was a material part OF such
sentence Various English cases were cited to
support the position. This requirement was by
25th of George II, enacted in 1852. The first
law of Maine on the subject of murder, in 1871,
provided simply the penalty of death. A later
act of the same year provided certification OF
the record to the Sheriff before execution, and
there was nothing about mode, time or place OF
execution in the law till 1887, and the statute
of George H. as the common law of the land
was the only authority on these points.
TWAS further claimed that there had been
no releal of the common law, requiring the
70 a we'd in the sentence. to
this time, only modification as to adding
solitary confinement, and requiring execution
not to be within a year, and nothing to JUSTIFY
Withdrawing authority to fix the day from the
cou1ts, and committing it to the Executive
The fixing of the time for execution was
claimed to be judicial act, not the execution
of a decree, but decree itself. He also
claimed that if it be contended that the Legls-
lature conferred authority on the Executive
that it was not competent Tor the
Legislature to do so, and the state constitution
was quoted from as to the strict division Of
powers of government If determining the
time of execution be judicial act. the Legisla-
ture cannot confer it on the Executive, and II
an executive one, the Legislature cannot confer
it on the judiciary. The Legislature had de-
cl1feQ IL a luulCidi Ny q 10" JeSs P-SSos~'
The action of the Executive was also objected
to, because the sentence of Wagner omitted tn
place of execution. This was part OF the
penalty, and something material. The point
was also made that though the Governor and
Council reviewed the case, they neither com
muted, pardoned nor issued a warrant. That
Executive went out of Office, and new one
succeeded him, who issued the warrant, and 1t
was no answer to say he was the same lndl-
vidUal The establishment of a tribunal to re-
view and decide murder cases after the courts
had convicted and passed sentence was an
attempt to confer judicial powers on the ex'
ecutive branch of government, and was uncon
stitutional. Objections as to the mode OF
proceeding chosen in this case were answered,
and Judge Tapley closed at 10 o'clock.
Mr., Yeaton began his argument and spoke
half an hour, and concludes tomorrow. He
said that after century of concurrent practice
in Maine and Massachusetts, the proposition
that we had illegally executed so many GRIM
inals was something startling. He made the
point that the jurisdiction of an equity court is
purely civil, and such courts are solely organ
lied to protect property rights, and fortified it
with liberal citations.