New-York tribune., 1890-05-24
KEMMLER'S LAST HOPE GONE.
HE MUST DIE BY ELECTRICITY, AS FRO:
VIDED BY THE STATE LAW.
THE SUPREME COURT DENIES THE APPLICATION
FOR A WRIT OF ERRoR-THE PUNISH.
MENT NOT CRUEL, NOT UNJUST
AND NOT UNCONSTITUTIONAL
AND NOT UNCONSTITUTIONAL


MENT NOT CRUEL, NOT UNJUST !
AND NOT UNCONSTITUTIONAL
Washington May 23.-Chief-Justice Fuller 10
day delivered the opinion of the Supreme Court
Of the United States denying the application for
writ of error in the case Of William Kemmer,
the murderer. confined in Auburn Prison. ~ Y.
under sentence of death by means of electricity.
The opinion reviews at length the history of
the proceedings in the case in the county and
State courts of New-York making copious quota
tions from the opinions of the State courts whose
proceedings are reversed. Continuing the Court
says:
We find, then the law held constitutional by the
Court Oh oyer and Terminer in rendering the original
pcals In Affirming il by the county Judge In the pro-
ceedngs upon the writ Of habeas corpus BY the Cen
Of the county Judge and by the Court of Appeals in
affirming that Judgment of the supreme Court.
The opinion gives the history Of the adoption
of the Electrical Execution law, and its effect
upon the criminal code of the State. The opinion
then says:
Section ) Of Article 1 Of the Constitution Of the
state Of New York provides that excessive oail shall
not he required nor excessive fines imposed, nor shall
cruel and unusual puns hments be inflicted nor shau
witnesses be unTeasonably detained
The Eighth Amendment to the Federal Constitution
punishments inflicted"
BY the Fourteenth Amendment it Is provided that
"Al persons born naturazed in the Cnited stites
and subject 70 the jurisdiction thereof are citizens Of
side. No state shall make enforce any law which
shall abrdge the privileges or immunities OF citizens
OF the United States shall any state deprive any
person OF life liberty or property without due pro
cess Of law nor deny to any Psrson I aw within its nr'
1t is not contended that the Eighth Amendment
has any application whatever to the states, but IL
mcnt which forbids state to make or enforce any
law which shall abrdge the privileges or mmlnities
the state from the imposition of cruel and unusual
punshments, and that such punlshments ARA are ais9
RITS,1Oi'Sd Ia%.1 O' inclusion III '"' '''H e1' D''
The provision in reference to cruel and unusual
punshments originated in the wellknown act OF Par.
lament OF lose. This declaration Of rights had
Departments OF the Government Of England; but the
language in question as used In the Constitution ot
operate upon the Legislature of the state to whose
control the punishment of crime was almost wholly
manlfestly cuel and unusual burning at the stake.
crucifl xon, breaking on the wheel dsembowelins or
to adindge such penalties to be within the conssu
tonal inhibition. And we think this equally true OF
Pnni,hmenfs- are crle! because they involve tor
ure or lngerng death but the punishment OF deaa
in the Constitution. 1t implies there something In.
human and barbarOus, something more than the merd
The courts of New-York held that the mode adopted
IN this instance might be said to be unusual ee.ubo $50
IL was new but tl1t III cOulu not De d,suulSu po
cruel in the light of that common knowledge which
has stamped certain punishments as such; that 10
Of death should be passed that this act was passed
in the effort to devise more humane metnod OF
presume tha; the legislature was possessed o. tne
facts upon which il took action; and that the evidence
SFewn. a'"e Tey ' indeed WENT further and expressed
the opinion that upon the evidence the legislature had
passage. The decision of the state Courts sustaining
NIT rooYarnnable here. that decision aQalnSt
tile right privilege or immunity specially set up
Treating it as involving an adjudication that the
statute not epugnant to the Federal Cons;itll-
ton that conclusion was 50 plainly right that We
should not be justified in allowing the writ upon the
ground that error might have supervened therein.
As TO the Fourteenth Amendment the opinion
says that the same person may ne at the same
time citizen Of the United States and citizen
of a State The privileges and tmmunites OF
citizens of the United States distinguished from
the privileges and imuinnltes of citizens OF the
States, are indeed protected by it; but those are
privileges and immrntics arising out of the
nature and essential character OF the National
Government, and they do not embrace the privl-
leges and immunites Of the citizen OF the State
Referring to the meaning Of the words duo
process of law = il is said
As due process Of law in the Fnh Amenanen' g, 10 ~
ferred to tnat law of the land wch aerdS S an ~ Con-
hority from the legislative powers coieed cSi ~, o nits
grcs, by the Constitution exercised wltIl tnc ii.s
therein prescribed and Interpreted a'cSs cor sreentS c IN
principles Of the common law 50, IN ne ,e lou of ~,
Amendment. the words refer 70 tnat IA" OF 1.s"
land i'm each which derives lts authority lroni
the inherent and reserved powers OF te oate, eHre
within the Limits of those Fundamental principiises Oh
n6fFy and igIce Th inIutSns S at ' nSoabtedy the
amendment fobids any arbitrary deprivation OF lue
ali under like circumstances in the enjoyment Of their
rghts. and IN the administration OF crim.nh !ussie2
be imposed upon than such a. Is prescribed ior az
for Ike offences. But it was not designed 10 lhleriero
nf flp ssnfp
ubcres and property OF IT. citizens. and 10 promote
their health peace morals education AID good order.
The enactment OF this statute IN itself within
the Ieyitmate sphere OF the legislative power of tho
state, and the Legislature Of 1he state OF Sew,norf
punishment and its courts have sustained that deter
nan We capnOt nm RfTssye that as sa'e S has has
petitioner. deprived him of due process Of law.
In order to reverse the nGsmen ,s q the hshes:
10 hoA that il had committed error gross
to amount in law to denial by the state of due pro-
hesitation IN saying that this We cannot do upon the
record before us
The case will next come up before Judge Wallace.
OF the United States Circuit Court, who made an
order TO operate stay or proceedings to save
Kcmmcrs lie until the Supreme Court could pass
upon the questions involved. This order was
issued with the understanding that counsel would
Immediately apply 10 the Supreme Court for
writ OF habeas corpus Their application for such
q writ was thrown out of court, but they were
allowed 20 have a hearing on an applcationAor q
writ of error, and il this application which
was to-day denied. The sane questions were IA
vOlved in this hearing as would come before th0
Supreme Court on a motion for 4 writ of habeas
corpus, the only difference being one Of form and
court practice. II is therefore supposed that
judge Wallace when the order becomes returnabe
on the third Monday in June next will vacate it,
that being practically the understanding upon
which the order was made.
is 1T A CASE FOR THE SHERIFF OR TIE wARDENs
Albany May 23.-The next step TO be taken in the
courts in the Kemmer will be the argument of
the appeal from the decision Of Judge Corlett, OF
Cayuga County denying writ Of habeas corpus asked
for on the ground Of the unconstltuonality OF the
power conferred Warden Durston in the execution
of criminals which power it is claimed, is vested in
the sheriff OF county wherein the conviction Is had
The anneal will come up before the General Term az Buf
i.e GaaLh