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"You are not doing this for humanity's sake?"

Sherman laughed and said, "There are four men in Sing Sing Prison, three in Clinton and one in Auburn who will probably be executed by electricity." His true client, he hinted, was one of the other 241 men. Sherman pointed out that the state Court of Appeals had not ruled on the question of cruelty and had instead simply deferred to the judgment of the legislature. Sherman said, "If Kemmler's lawyers were stupid enough to sit down supinely and accept such a decision when the issue could be settled in a higher court, and another man has the sense to come in and show them the proper thing to do, why shouldn't he do it?"18

Within forty-eight hours of Kemmler's reprieve, a piece of astounding news arrived on the wires from Albany: The lower house of the state legislature had voted to abolish capital punishment. Every year Representative N. M. Curtis, a principled foe of the death penalty, introduced a bill to abolish it, and every year he watched it die of mockery or neglect. This session, however, the bill passed, without debate, by an overwhelming majority of 74-30. The reason for the vote was not hard to divine. The backroom dealing was so brazen that one lawmaker told his colleagues on the floor of the Assembly, "Westinghouse money is passing this bill." Newspapers, which normally couched their corruption charges in hints and innuendo, came right out and charged the Westinghouse company with bribery. According to the World, "Such a bill would never have been passed except for the aid of Westinghouse's money." The bill was "purely and simply in the interest of the electric light company," the Herald wrote. The Times described passage of the bill as "probably the most disgraceful exhibition ever made of itself by a legislative body in a civilized country"19

When the bill was forwarded to the state senate, it died in a committee, but this outcome did little to stem the tide of invective sweeping over the Westinghouse company George Westinghouse felt compelled to publish a denial in the New York newspapers: "Neither I nor the Westinghouse Electric Company, nor any person associated with me, has any connection, direct or indirect, with the habeas corpus proceedings instituted by Mr. Sherman in the Kemmler case or with the effort to abolish capital punishment in this State by legislative enactment. I make this denial without any reservation of any character."20 Incredulity greeted Westinghouse's disavowals. "Poor Mr. Westinghouse," the Herald wrote mockingly, claiming that the industrialist had only himself to blame. The danger of his alternating current had received "a thousandfold the advertising that it would have got had he remained quiet and never started the ball of investigation and publicity rolling."21*

THE WRIT OF habeas corpus acted as a stay allowing time for Sherman to appeal to the U.S. Supreme Court. When he appeared before the Court in Washington on May 20, Sherman argued that electricity was likely to inflict a slow and lingering death. The justices of the nation's highest court, like their counterparts in New York, were unmoved. The court's opinion in Exparte Kemmler provided a definition of cruelty that would become standard: "Punishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel, within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life." Given this standard, the Court held that electrical execution was not cruel. The New York State Legislature had acted within its proper authority in passing the electrical execution act, and the state courts had affirmed the law's validity The Supreme Court had no reason to intervene.22

A few thin rays of hope remained. There were reports that Westinghouse Electric would try to repossess the execution dynamos on the grounds that Harold Brown had obtained them fraudulently,