The Republican journal., 1875-03-18
Hearing on the Wagner and Gordon
Cases.

! ROCKLAND, March 16. The hearing on
the petition for an Injunction to restrain the
execution OF Wagner began in the Supreme
Judicial Court this evening, large num-
| Der being present. Judge Tapley appeared
for Wagner, d. N. Mortland, Esq, for Cor
! don, and Geo. G. Yeaton, County Attorney.
for the State Gordon's case being first
| on the docket, Mr. Yeaton said it should
| be first proceeded with, but Mr.. Mortland
said Gordon would abide the decision
reached in Wagner's case. as they were
similar
JUDGE TAPLEY's ARGUMENT
Judge Tapley then read the petition
and proceeded with his argument which
was an able presentation OF the case, and
consumed two hours and half Three
warrants were put into the case which
were described, it being claimed that the
first warrant, though dated October I'd,
1874, was not issued till January 10Th or
goth, 1875. Judge Tapley claimed that
by English statutes which were the com
mon law Of this country, the day Of exc
cution was required to be stated in every
sentence on conviction OF murder and
was material part of such sentence.
Various English cases were cited to sup
port this position. This requirement was
by 25th Of George H., enacted in 1852.
The first law of Maine on the subject of
murder was in 1921, and provided simply
the penalty Of death. A later act Of the
same year providing for the certifcation
of the record to the sheriff before execu-
ton, and there was nothing about the
mode, time, OF place of the execution in
the law till 1887 and the statute Of George
III. as the common law of the land was
the only authority on these points.
1t was further claimed that there had
been no repeal of the common law requir-
ing the day of execution to be fixed in the
sentence. To this time the only modtica-
ton was the adding of solitary contine
ment and requiring the execution not to
be within year. There was nothing to
justify the Withdrawing Of authority to fix
the day from the courts and commit it to
the Executive. The fixing OF the time for
the execution was claimed to be a judicial
act, not the execution OF a decree, but a
decree itself 1t was also claimed that if
it be contended that the Legislature con-
ferred authority on the Executive, it was
not competent for the Legislature to do
so, and the State Constitution was quoted
from as to the strict divisions OF the powers
of Government.
IT determining the time of execution
was a judicial act, the Legislature cannot |
confer it on the Executive, and if executive |
the Legislature cannot confer it on the |
Judiciary The Legislature had declared |
it a judicial act by the law Just passed |
The action of the Executive was also ob-
iected to because the sentence of Wagner |
omitted to name the place of the eXecu-
ton This was a part Of the penalty and |
something material. The point was also
made that though the Governor and Coun-
ell revised the case, they neither commit |
ed pardoned nor issued warrant; that the |
Executive went out of the office and a new |
one succeeded him, who issued this war
rant, and it was no answer to say he was
the same Individual The establishment |
of a tribunal to review and decide murder |
cases after courts had convicted and pass
ed sentence was an attempt to confer ju-
dcial powers on the executive branch Of |
the Government. and unconstitutional
Objections as to the mode approaching
chosen in this case were answered, and |
Judge Tapley closed at 10 o'clock
MIR. YEAT0N's REMARKS.
Mr.. Yeaton began his argument and !
spoke half an hour, and concludes to-mor-
row. He said that after century Of con
current practice in Maine and Massachu- |
sets the proposition that we had Illegally !
executed so many criminals was some
thing startling, lie made the point that
the jurisdiction Of an equity court is pure
ly civil, and such courts are solely organ