“The Law”

May 17, 1890

Charles G. Bush

“The Law”

Crime and Punishment; Technology, Electrical Power;

No 'People' indexed for this cartoon.

No 'Places' indexed for this cartoon.

"Hold on, my friend, don't shoot; I'm a judge."

"Waal, s'posin' ye are? Judges ain't no more 'count than de law is nowadays. Ye can't hang a feller, ye can't 'lectrify him, an' my lawyer kin appeal 's fast as you kin sentence. Shell out!"

This cartoon appeared in Harper's Weekly as the United States Supreme Court was preparing to hear arguments on the constitutionality of death by electrocution for those convicted of capital crimes.

In the first half of the nineteenth century, executions in the United States were held in public, combining aspects of a morality lesson, social deterrent, and gruesome spectacle.  The chief form of execution was hanging by a rope until dead.  The events were well attended and widely reported in the press, but by the 1880s, most states had outlawed public executions. 

A reform movement to abolish the death penalty waxed and waned over the century, but by the late 1870s, it was banned in only four states:  Maine, Michigan, Rhode Island, and Wisconsin.  Disgust with hanging, though, was starting to win adherents to the cause.  In most cases, the fall from the gallows platform did not break the convicts' necks and produce instantaneous death.  Rather, they were strangled to death over several minutes, while their bodies twitched and writhed in agony.  Some medical and legal experts began to suggest lethal injection as a substitute for hanging, but it never caught the public's attention. 

In the 1880s, Alfred Southwick, a dentist from Buffalo, New York, began promoting electrocution as a means of capital punishment, and performed experiments on stray dogs.  His experience as a dentist led him to favor a reclining chair as the apparatus.  Southwick's views came at an opportune moment, when the public was fascinated by the new and rapidly expanding uses of electricity.

Daniel MacMillan, a one-term New York state senator, latched onto Southwick’s ideas in favor of electrocution as a quick, effective, and arguably humane method of execution, and helped transform what had been a moral debate into a technological one.  MacMillan and many of his supporters were trying to defend the death penalty, and feared that unless an alternative method of execution was found, the death-penalty abolitionists would triumph.  

MacMillan, a Republican, convinced Governor David Hill, a Democrat, to support his legislative effort to replace hanging with death by electric chair.  Labeling hanging a remnant of the "Dark Ages," Hill endorsed MacMillan's bill in his State of the State message of 1885.  The legislature, however, neglected to act, so in 1886 MacMillan introduced a resolution establishing a special commission to study and report on alternative methods of execution.  The legislature approved it without debate.  

The panel solicited the views of many, including Thomas Edison.  At the time, the famous inventor was involved in a struggle with George Westinghouse for control of the business and residential market for electrical power.  Both the Edison Electric Light Company, which used direct current, and the Westinghouse Electric Company, which used alternating current, were trying to win the public's confidence that their system was the safest and most reliable.  Edison's initial response was to call the death penalty, in whatever form, "barbaric."  However, he soon agreed to cooperate, and contended that the best way to execute was to use Westinghouse's system, because it was the deadliest.

In January 1888, the commission submitted its final report to the legislature in which it recommended electrocution for capital punishment.  A bill based on the report passed the legislature in late May and was signed into law on June 4 by Governor Hill.  Harold Brown, who allegedly had close connections to Edison, was assigned to oversee the testing of methods of electrocution on animals.  Westinghouse refused to sell New York any of his company's generators for the electrocution study, but Brown managed to secure three through indirect means.  

In 1889, William Kemmler, who killed his common-law wife with an ax, became the first person sentenced to death under the new statute.  Westinghouse, having failed to prevent his generators from being used, financed a lawsuit on Kemmler's behalf.  His lawyers argued that execution by electrocution violated the constitutional ban on cruel and unusual punishment, and that Kemmler had been denied his due process rights under the 14th Amendment.

At the beginning of the New York legislative session in 1890, Assemblyman Newton Curtis introduced a bill to eliminate the death penalty.  It was an annual ritual for the legislature's leading foe of the death penalty, although his efforts usually gained little notice and died in committee.  In 1890, however, former opponents of the measure delivered a series of strong endorsements on the floor, and newspapers identified the influence (and money) of the Westinghouse forces as the reason for the turnabout.  Westinghouse pointed to Edison as the culprit, which was unlikely.  Curtis's bill passed the Assembly by a staggering 74-29 margin, and was presumed to be on its way to victory in the State Senate, but the Senate Judiciary Committee reported it unfavorably, 7-2.  

On May 23, 1890, shortly after this cartoon appeared, Chief Justice Melville Fuller, speaking for a unanimous U.S. Supreme Court, announced that execution by electrocution was not an unconstitutional violation of cruel and unusual punishment, and that Kemmler's due process rights had not been abridged.  The case was remanded to the federal court in New York, which dismissed the suit on June 11, 1890.

On August 6, 1890, 100 reporters representing newspapers from across the country descended upon the state prison in Auburn, New York, for Kemmler's execution.  A reporter from both the United Press and Associated Press were allowed to view the execution, and a telegraph station was erected temporarily across the street.  Unexpectedly, the first current did not kill Kemmler, but only rendered him unconscious as he foamed at the mouth and his flesh began to burn.  After several attempts, he was finally pronounced dead.  

The next execution in New York did not take place until a year later, when four death-row inmates were sent to the electric chair on the same day.  In 1899, Martha Place became the first woman to be electrocuted.  Her sentence created a controversy over whether women should be executed (a similar debate had occurred in 1859 over the hanging of a convicted female murderer).  During the next 100 years, over 4000 people were executed by the electric chair in the United States (the only nation to use the method).  In the 1990s, death by lethal injection supplanted electrocution as the dominant form of execution in America.

Robert C. Kennedy

“The Law”
February 22, 2024

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