The sun. [volume] (New York [N.Y.]) 1833-1916, 1890-05-24
KEMMLER'S CASE DECIDED.
THE SUPREME COURT DENIES TIE
APPLICATION ron Il WRIT OF ERROR.


Stnke, GrucIGRIon, sSc.-Tho Prisoner
Not Deprived OF Rights Under the Four
,.rnth Amendment of tho Constitution.
WAsHrNGToN. May 23.-Chief Justice Fuller
To-day delivered The opinion OF the supreme
Court OF the United States denying the appl-
cation for n writ OF error in the case OF william
Kemmlcr the murderer confined in Auburn
prlson n. y, undor sentence Of death by
means OF electricity. The opinion begins as
fellows:
This Is an application for writ OF error to
bring up for review n judgment Of the SUI
nreme Court of tho State OF New York. affirm
inc an order OF the County Judge Of CaYuEa
county, remandinR the relator to the custody
of the Warden of tho State Prison at Auburn
upon hearing upon habeas corpus The
Judgment OF the Supreme Court was entered
upon u Judgment OF tho Court OF Appeals OF
tho Stute OF New York. affirming previous
order Of the Supreme Court. The application
was originally presented to Mr.. Justice Batch
ford. and. upon his suggestion. was permitted
to 10 made in open court and has been heard
upon full argument A writ of error to the
highest court OF a State is not allowed as OF
right, and ought not to be sent out when tho
court in session. after hearing, is OF opinion
that it is apparent on the face OF the record
that the Issue OF the writ could only result in
the aClrmanco of tho judgment" Spies Vs.
Illinois. 123 L. s., 49,.
The opinion then reviews at considerable
length the history Of tho proceedings in the
cuso in tho county and State courts OF New
York. making copious quotations from the
opinions OF the State courts. whose proceed
ings are reversed Continuing the Court says
I'VE ilrJ. then. tho law held constitutional
By tho Court of Oyor and Terminer in render
Ing tho original Judgment, by the Supreme
Court and the Court OF Appeals In affirming it,
by tho County Judge in the proceedings upon
the writ of habeas corpus. by tho General Term
OF the Supreme Court in affirming the order OF
the County Judge. and by the Court of Appeals
in affirming that judgment of the Supreme
Court. 1t appears that the first stop which led
to the enactment OF the law was statement
contained ii the annual message OF tho toy
eraYr Of th9 state q NeT 1S s slanntted to
The present mode OF executing criminals by hang
Oe % TO Whd 5 Hs 1 d"t and
sn S S4nao ssS S sf 6.4 59s s OF
nsr lcJmmend This suggestion to the consideration
OF the Legislature
Tile Legislature accordingly appointed
INST AGmanc and practical method known to
modern science Of carving into effect the son
sion reported in favor OF execution by ELECTRIC
iu, ana accompanied their report by bill:
the Laws Of lSSS. Among other changes Sec
ton lUi Of the Code of Criminal Procedure OF
Now Il Th wis ulutuueu 81 uS " Iohu dS lOlONH.
Tho punishment OF death must in eve;y case to In.
Set by to To% a a s S9Gy Sf mS 10
causS!ca;h and the appcation OF such current must
Re continued until such convict Is dead"
Sections IL. II. and II of this act are quoted
and the ollo wing is "A verbatim copy of the re-
maluder Of tho oliuion:
"Kemmler was indicted for and convicted Of
murder committed on the 2nth day Of March,
1889, and therefore came within the statute.
The Inhibition o: the Federal Constitution
uron tho rassage Of oX-post tacto laws, has no
= of nj
siitutlon 0l tho state OF New York provides
that o ;ccssive bail shall not DO leuuired nor
unusual punlshments be inflicted nor shall
witnesses DC uureasonqbly, detailed The
ton roads thus: Excessive bail shall not be
required. nor excessive tnos imposed; nopcrnel
and unusual runishmentS inflicted By the
Fourteenth amendment 1t is provided that
All persons horn nmturalize in the:t nited States
nn nSd m an Of tie Wherein fe
NO state shall make or enforce any law which shall
nad St",do nor SsNa any aie deprive any person
nor S deny Of Within
protection OF the laws
II IL not sontended. as 1t could not be. that
the Eighth amendment has any application
whatever t. the States, but it is urged that the
provision o. the Fourteenth amendment which
which shah abridgo tho privileges or immuni-
boG the Sae from Tho Of
cruel and unusual punishments and that such
punishments are also prohibited by inclusion
in the term. due process Of law
The provision in reference to cruel and I'M
usual p1nishm ~ orEi1af ted in t9e well
act declaring the rights and Liberties Of he
grounds Of grievance. and among others that
'oxcegsive bail hath been required Of persons
eft of the laws made for tho liberty of the sub
Jects and excessive fines have been imposed
IS DECLARED that excessive BAH ought moi to
be required. nor excessive fines imposed.
hE %toG tu' TITS Hn decas@tion Of rghts had
refcrence to the acts Of the executive and Ju-
dbc!nfdepartmen' OF the Government OF Eng
land but the language in question, rs used In
the Constitution Of the State OF Now York. was
intended PARTICULARLY 10 operate upon the
lined. So that Il the, punishment prescribed
manifcstly cruel and unusual. rs burning at
the stake. crucifixion. break ing on the wheel.
disemboweling. or hanging In chains, it would
be thu duty of the courts to adludRe such pen
alties to he within the constitutional Inhibition.
And we think this equally true OF the eighth
amendment in its application to Congress. In
MikersOn agt. Utah, 90 United States. 1870 135.
Mr. Justice Clifford. in delivering the opinion
OF the court referring to Blackstone. said
aciess he extent Of the provision which
bS
Ss ana Ss n.l m tie SAME Inc Of
sary cruelty, are forbidden by that amendment 10 tho
Punshments are cruel because they involve
torture, or lingering Heath, but tho punish
mont Of dcHt tn is not cruel within the meaning
Of that word rs used In. tho Constitution. II
implies there methng.tnhumaniand harbar-
Gus something more than the nero causing Of
dissolution.
THE courts of New York held that the
mode adopted in this instance might be- said |
10 be unusual hecnuse II was now. but, that il
could not DO assumed to be cruel in the light |
of that common Knowledge which has |!
stamped cert9in ,punshnlonts rs such; that I |
WAS for the Legislature to say in what man
Nor sentence Of death should be OK ecLted that |
this aot WAS passed in the EFFORT to devise a |
IAoro humane method Of reaching the result; !
tlatthe courts we're bound to presume tina the |
Legislature wns possessed Of the facts upon |
which It took action; and that. by evidence
taken nlunde tho statute. that presumption |
could not be overthlOw They indeed went ,
further and EXPRESSED tho opinion that upon !
tho evidence; the l.egi .laturo had attained by |
the net tho object had in view in its passage
II he decision Of the state courts sustain |
Ing tho validity OF the act under tho State Con.
Elltutlon IL hot 70 "Xaminable here. nor WAS
that decision against any title. right, privilege,
or immunity spec Tally set NJ or claimed by the |
petitioner unier tho CONSTITUTION OF the United |
States. Treating 1t AS involving nm adJudca- |
tl. ,ttIfa Npaa upt