Evening journal., 1890-05-24
NOT CRUEL AND UNUSUAL
The Empire State Electrocu-
ton Law Constitutional.
KEMnLER's HOPE WAS FUTILR.
Tho United States Supreme Court Refuses
to Grant Writ Of Error, and tho sIur.
dsre~ pnst DO E1eouted According 10
Law KemInler's Only Wkh.

" aSbiNbtbNs MAY n ~ NJ ilildm kpqnins
lermust die by the Empire state method OF
capital punishment. She judges Of the su.
premo court OF ths United States have
unanimously denied Attorney Sherman's
application for writ Of error.
The court reviews the history Of the en-.
actincnt of tho law, beginning with the
statement contained In the annual message
Of the governor of New York. Jan. 6, 1886.
The section OF tho constitution OF New York
relating TO "cruel and unusual punish.
ishments" II also quoted. This provision
had its origin in the act OF parliament Of
1858, declaring the rights and liberties OF
the subject and settling the succession Of
the CROWN
Tho Opinion Of the Court.
''This declaration of righta,n says the
court. "had reference to acts OF the exeeu.
tive and judicial departments Of the govern.
ment Of England, bun the language in ques
tion "a used in the constitution Of the state
Of New York was intended particularly to
operate upon the legislature OF the state to
whose control the punishment Of crime was
almost wholly confided.
so that II the punishment prescribed
for an otfenao against the laws of the state
were manifestly cruel and unusual, as
burning at the stake, crucinxion, breaking
ON the whea- disemboweling, or hanging
in chains. it would be tho duty OF the courts
to adjudge such penalties to DO within the
constitutional inhibition. And we think
this equally true Of the eighth amendment
in its application 20 congress. Punish
ments are cruel because they involve tort
ure or a lingering death; but the punish
mont of death is not cruel within the moan
ing Of that word as used in the constitu-
ton. II implies there il something inhuman
and barbarous, something more than the
mere causing Of dissolution.
What the New York Courts Held.
'1he courts Of New York held that the
mode adopted in this instance might be
said to be unusual because it was new,
but that i could not be assumed to be
cruel in the light Of that common lSnowl.
edge which has stamped certain punish
ments as such; that II was for the lcgisla-
ture 20 say in what manner sentence Of
death should be executed: that this act
was passed IN the effort to devise a more
humane method OF reaching the result;
that the courts were bound to presume that
the Legislature was possessed Of the facts
upon which it took action and that by evil
dence taken nliunde the statute that pre-
sumption could not be overthrown They
| indeed went further, and expressed the
| opinion that upon the evidence the legis-
lature had attained by the act the object
had in view In its passage.
A Plainly Proper Decision.
THE decision Of the state courts sustain
ing the validity Of the act under the state
| constitution Is not re-examinable here. nor
was that decision against any title, right,
privilege or immunity specially set up or
/ claimed by the petitioner under the consti-
tuition Of the United States Treating il
rs involving an adjudication that the
statute was not repugnant TO the federal
constitution, that conclusion was 80 plain
| ly right that we should not be justified in
| allowing The writ upon the ground that
error might have supervened therein
The Fourteenth Amendment.
"The fourteenth amendment did not
/ radically change the whole theory Of the
relations OF the state and federal govern
ments to each other, and of both govern
ments to the people.
'1he same person may be az the same
tins citizen Of the United States and
citizen of state Protection TO life, lib
| erty and property rests with the states, and
the amendment furnishes an additional
guarantee against any encroachment by
| the states upon those fundamental rights
which belong TO every citizen as a member
of society, but which rights the state gov
ernments we're created to establish and Sc
cure The privileges and immunities of
citizens ef the United States as distin-
guished from the privileges and immuni-
ties of the citizens Of the states are indeed
protected by il, but those are privileges
and ammunities arising out OF the nature
and essential character of the national gov
ernment, and they do not embrace the
privileges and immunities Of the citizens
of the state.
Concerning "Due Process Of Law
"As due process OF law in the fifth
amendment referred to that law Of the
land which derives its authority from the
legislative powers conferred upon congress
by the constitution Of the United States
exercised within the limits therein pre-
scribed and interpreted according to the
principles OF common law, 50 in the four
teenth amendment the same words refer
to that law Of the land in each state which
derives its authority from the inherent and
reserved powers Of the state exerted within
she limits OF those fundamental principles
Of liberty and justice which lie AZ the base
Of all our civil and political institutions
Undoubtedly the amendment forbids any
arbitrary deprivation of life, liberty and
property, and secures equal protection to
Ill under like circumstances in the enjoy
ment Of their rights, and in the admins
iration Of criminal justice requires that no
different or higher punishment shall be inn
posed upon one than such as Is prescribed
for all for like offenses, but it was designed
70 Interfere with the power Of the state to
protect the lives, liberties and propertyof
its citizens and to promote their health,
peace, morals, education and good order
The Law Is constitutional.
'The enactment Of this statute was in it.
self within the legitimate sphere OF the
legislative power Of the state and in the
observance of those general rules prescribed
by our system of Jurisprudence, and the
legislature Of the state of New York deter
mined that it did not inhict cruel and un-
usual punishment, and its courts havB sus-
tained that determination. We cannot
perceive that the state has thereby abridged
the privileges or immunities Of the petit
aoner or deprived him Of due process of
law. In order to reverse the judgment Of
he highest court Of the state of New York
We should be compelled to hold that it had
committed an error so gross as TO amount
n law to a denial by the state Of due pro-
sess Of law to one accused Of crime. We
nave no hesitation in saying that this we
,annot do upon the record before usn
Tho Order VIII BE Vacated.
The order OF United States Circuit Judge