Evening star. [volume] (Washington, D.C.) 1854-1972, 1890-05-20
TRYING TO SAVE kEMMLER.
His Lawyer Argues His Case Before
the Supreme Court.

His Lawyer Argues His Case Before
the Supreme Court.
HE CONTENDS THAT DEATH By ELECTRICITY Is
CRUEL AND UNUSUAL PUNIsHMENT"-THE
HEARING OF THE APPLICATION FOR A WRIT OF
ERRoR-scESEs IN THE COURT ROOM.
great many Of those good people who have
nothing else to do but watch and wait for the
occurrence Of matters of more than ordinary
interest were in the presence Of the
Supreme Court of the United States
this afternoon. There was also
fair sprinkling of legal talent
within the fence which separates the layman
from his brethren learned in the law. The
central figure in the earlier portion of the pro-
ceedings was moderately tall and very
shapely man, whose pleasant face was bsected
by brown moustsche. He stood upright
regular thing and read rapidly in clear
cut tones from printed brief which
was spread before him on a table. His gestures
were most frequently with his head. but when
ever the occasion seemed to demand especial
force he would bring his right arm to the
front and shake a muscular fist in the direction
OF the court. He was Roger NJ. Sherman of
New York, and he was talking in sup
port OF his most prominent client, one
kemmler, now under sentence of death by
could doubt Mr.. Shermans earnestness; GER
tainly the court did not. for every member of
that body paid more than ordinary amount
OF attention TO the argument, and Justices Har-
Ian and Gray asked good many questions.
The argument was on the application for a
writ of error.
Ex-Attorney General Garland, ex-Secretary
Bayard, several Senators and Representatives
and Attorney General Tabor of the state of
New York were within the bar of the court.
MR. sHERMANs ARGUMENT.
Mr.. Sherman based his argument on the
fourteenth amendment to the federal Constitu-
ton, which provides that mo state shall make
or enforce any law which shall abridge the priv
ileges or immunities of citizens of the United
States: nor shall any state deprive any person
of life, liberty or property without due
process OF law" and on the amendment.
which provides that Cruel and unusual pun
ishment shall not be inflicted" Every seat in
the court room filled. but there was no
crowding, such as prevailed yesterday when
the case was to have been heard.
Mr.. Sherman explained the circumstances in
which the writ of error was brought I'VE as
sumo" he said. with entire confidence. that
the determination of questions which the de-
cisions of this court have left open will not be
reached i'll this case upon the present motion,
but upon the return to the writ and in due
course of law"
CRUEL AND UNUSUAL.
IT.
death by electricity was cruel and unusual, and,
therefore, without due process Of law He held
that the question what. in the State of New
York. is a cruel and unusual punishment for the
crime of murder. is one of federal cognizance
under the fourteenth amendment, although
it involves the construction of the state
constitution, and the supreme court is at
liberty to differ from the court of appeals
upon it. Mr.. Sherman also held that the
warden of the penltentiary Mt Auburn was
given too great discretion by the law. 1t
conferred upon him power which had here
tofore been solely contided to the court
ELECTRICITY AND THE ROPE.
In discussing the question as to the compare
tive humanity of the electric current and the
rope Mr.. Sherman held that the electrical law
gave the warden no discretion in the matter
of the application of the electric
rent He obliged to continue the
current until the criminal was dead. The war
den might use the current for a week If neces-
sary until it killed. 1t had been shown that
not electricity but a series of nervous shocks
was to cause death.
Mr.. Sherman gave number of instances of
the inhction of death by electricity to show
that man would not be instantly killed by
the application provided for under the
New York law. He believed that if
current of electricity were continuously
applied to Kemmler it would be diffused over
his surface. The result would undoubtedly be
that, to an extent, the criminal would become
part Of the circuit and that his skull and skin
would lend resistance to the current.
ATTORNEY GENERAL TABOR.
Mr.. Sherman concluded his remarks at LAO
and then a stoutly built man, somewhat pale
of face, with a dropping mustache covering
mouth that did not open over widely, arose
and commenced a recitation of the causes
which led to tue enactment of the electrical
execution law. 1t was Attorney Gen
erai Tabor of the state Of New
York. His high forehead was partially
concealed by a surplus of frontal hair which
contrasted materially with the sparsely
covered region at the rear of his crown.
The attorney general used much more vocal
force than did his oratoricai opponent, and he
frequently made use of lengthy index finger
| to point some moral that he desired to
emphasize.
Mr.. TABER's ARGUMENT.
Mr.. Taber told how the New York statute
providing for electrical executions had been
enacted and affirmed that it represented the
best thought Of eminent humanitarians. All of
last summer had been consumed by the coun-
sci for the relator and one-third of the printed
testimony had been taken up in the effort to
prove that one kind of electricity would not
kill The Court in General Term had declared
that it within the reach of science to
apply current of electricity to the con-
Wet SO as to kill him, and Mr.. Sher-
man had quoted few extracts from
the testimony to endeavor to 4, show that
| there necessity for further Investigation
and to compel the court to examine 1900 pages
of that testimony. The good people OF the
state of New York were beginning to be
doubtful as to whether there was vitality enough
| in the law to punish criminals. There had not
| been any claim that the state statute was in
conflict with the federal Constitution except so
! far as concerned the eighth amendment, and
| the counsel for the relator had abandoned even
! that contention.
Mr.. Sherman closed in a few words