New-York tribune., 1890-04-30


The within wit Is granted this 29h day Of Ap rr '''''
WILLIAM J. WALLACE
fudge United States Circuit Court.
1t goes without saying that in the suspicious
naturally excited by the granting OF 'he oIoei
there can be nothing that affects Judge Wallace
He acted under a mandatory statute. 1t was
passed originally in 1913 and had paI'icd."l ',i"r
reference TO the South. 1t provides Una thaV ,s w1en
the claim is made before Federal Judge onag
man * deprived of his liberty under
State law which Is IN coh''iS e"',Hh tTa
of the Constitution or laws laws sboIl issue %e
and tho oucstion of contravention shall he de-
termined The claim here is that henlmicr is neid
under law providing for hs uea,m nA aand
ment prohibits Judge Wallace was WIInVu. us
cretion under the Federal statute. lie nav ="
grant the writ and subsequently, " Hc"i " "
Az Sherman own statement of his connection
with the case is not frank lie refuses aosoiu'oH oi
to saw who his employers are: lie denies rs az a.
sontSlv that they are the Westinghouse people;
There are others well as Kemmler sentenced sentenced
to die by electricity he sad %mo rbetber " 81 this
law is sound or not" Except for this hint
he gave no account for his AUTHORITY. h., o.ho,
"Do you say that you are retainer ny o'"ci
10. | saw nothing more than have said My
clients not the electricity people, toIi d 81
indirectly. But who they are cahh9' Nh' ""u
do not think myself called upon TO tell,
when did YOU come into the case
Late on Sunday night. l VIII add thal III!
iootin@ for notcricty. / don't need that.
This remark was not wholly in keeping win
his earlier statement that his appearance ""'
What are the grounds of yonr action? ,ho
They relate 10 the cons'it",,ohaIiN 9i enn o"o
law The question raise is not that passed upon
by our Court of Appeals. Their dcc.son was was
that they were without jurisdiction; tnat 1t was
for the Legislature to say whether proposes
mehod Of punishment is cruel or unusual and
that the question is one of fact and not OF law. M
That decision settles the matter so !aI M " VIIItI
State authorities are concerned. Bat thc VIM
Amendment to the Constitution of the .ni'ePu
States also forhids cruel and unusua! punlsi-
ments, and possibly the Federal supreme |ouIt
NAV not agree with the state tribunals. IL
II dopsn' its authority controls. The AlNth Amend
ment also contains provisions when cover 'n',
case 1t declares that no STATE shall pass VI
enforce any law which abridges thc prlEucSeS
and immuntics enjoyed by citizens oil me Iml'Gn m
States 1t declares also that no one snail DC
deprived of life, liberty or property wiinou1 que
process of law. Now, upon the determination Oh
questions arising under these amendments, thc
Federal courts empowered 10 so pacK OF ,he
State Legislatures, and TO decide Iact a.h n"T
from their own points of view. so that ailhougn
our Court of Appeals has declined TO pass upon
the question whether this sort OF punlshmenl
provided by the law of SIS is or Is no' na c,rei,
the Federal courts must do so. They cannot
escape the necessity of rendering a full decision.
l expect, therefore, to show by evidence Ihal eIc
punishment is cruel as matter OF fact II III
IS. and if they so declare il. they must discharge
Kemmler.'
DO You mean to say that murderer con- on
csmse the method prescribed for his taking off
is declared TO he an unlawful method: that he
to a certain method of punishment? corr.
saws that this law is unconstitutional hemMIer
will walk out of Auburn PRISON iree man &C ,he le
law providing for the adoption OF electricity as 'ne
agent of death expressly foTNds tne use VI "'!A
other agent That part Of the law VIII fenln,n 6n,t
untouched by the Supreme Courts amendmenl
The annument will extend only 70 me prosisi@onH @
that contravene Federal law; All the rest VIII
remain That is not Kemmlers fault, nor his
The man who is expected thus TO be released
by process he has not asked and pro'iuea
for him by persons whom he does not know, and
who dare not avow their names, sleeps III prison
tonight convicted Of having chopped woman
into twenty-seven pieces. Mr.. sherman III MS
desire to serve society by procuring tins man
freedom is also concerned about the liberty OF ine
press. He says the law Is unconstitutional; DC,
cause it forbids the publication Of any detali
of the execution beyond the mere TACT that IL
has taken place lie said that this alone was
enough to secure the laws annument, forgetfui
of the point he had moment before mentioned
two, or 20 many as were in cOnnIct with the
Federal law, and leave all the rest in full force
Ii is Interesting in connection with Mr.. Nler-
mans visit and with his denial Of any relations
with the WESTINGHOUSE people, TO note that Henry
Gayley junior member of the law firm. carter.
Westngh ghouse Company. also arrived here early this
morning and frequently in Mr.. Sherman,s
company. Mr. Gayle, soid he had lutte busI;
connected with the Kcmmlcr matter"
After Mr.. Sherman and the Buffalo eeXperts
Durs1on concluded he would tell Kemmer of his
good fortune. lie seemed in no great hurry
about it; however but gave his attention 10
for over an hour Finally he descended into tie
cells and saw Kcmmler.
William" he said 1--WE been served with n
paper from the United States Court which directs
me to produce YOU before Judge Wallace on the
third Monday in June. This stays your sentence for
Why what do YOU mean? ?7 demanded tie
sstonished wretch. Amt nothing going TO be
Not vet. anyhow not beforr June
THAT relieves my mind said kemmer. simply
We'll YES" replied the Warden. " so II ought.
This was the entire interview, kemmler had
been living on his couch when the Warden entered
When the Warden left he lay down again. Moth
ing in his face showed that his mind had under
gone any particular transport. .
Kenmlers real lawyer, Charles ,. Hatch, OF
Buffalo. made an effort Yesterday 10 oDlaln Il
respite from Governor Hill, but it was not % sIc-
cessful. The Governors private sccrctary ,elc-
graphed the lawyer that Governor Hlll ga" 10
cause or occasion that justified him in interlerlng.
But for the Sherman proceeding uie eAecution cnnl
would have gone forward. and 10 one suppOses
that in any event it will long be postponed. -,
Il have no idea that the Federal courts VIII
interfere at all" said Judge Day this afternoon
r. was before Judge Day Nat Kemmler was
brought upon the first habeas corpus proceedings
Judge Day passed then upon the question ol con-
stitutionality and his decision was in all re-
spects upheld by the higher courts. gave The
subject very careful consideration, and from the
point Of view of the Federal as well as the state
Constitution the Judge continued, Il iound
Aood of Supreme Court decisions affirming what
is perfectly obvious. that the Eighth Constitu-
fional Amendment was intended check upon
Congressional legislation. not upon State legisla
lion IL was a part OF the Bill Of Rights passed
bv the Ist Congress to appease Massachusetts, and
VIRGINIA and was meant, as all those earliest
amendments were, 10 satisfy the people OF the
several States that the newly created central Gov
eminent would attempt no exceptional legislation
in defiance of popular rights. This was the mo-
tive of the amendment, and SO the supreme
Cohrt has frequently declared Nogcovcr 1t is
perfectly clear that the question whether GER
tain act is cruel is question OF fact III IS 10
be ascertained as facts are asccriained IL Is
rot a matter that judicial opinion car decide
This view will appear TO the Federal judges as