CHAPTER 14

Showdown

THE HEARINGS ON the constitutionality of electrocution opened on Tuesday, July 9,1889, in Bourke Cockran's legal offices in lower Manhattan. Presiding was Tracy C. Becker, a Buffalo attorney whom Judge Day had appointed as the referee. The proceedings stretched on for more than three weeks, and among the four dozen witnesses were Thomas Edison, Elbridge Gerry, two future presidents of the American Neurological Association, and three future presidents of the American Institute of Electrical Engineers.

New York's daily papers gave the hearings a great deal of space in their pages, with special emphasis on the performance of Cockran. Just under six feet tall, the lawyer had a wide chest, bushy mustache, massive round head, and drooping jowls. He spoke with an Irish accent and was famous for his sharp wit and withering cross examinations. During the hearings Cockran pitched his message not only to the appellate judges but also—through the medium of the press—to the public and the state lawmakers. Although Kemmler's appeal might fail in the courts, the legislature could repeal the law if public opposition to it continued to grow. As a veteran Tammany politician, Cockran knew how to appeal to the masses, and a proper show involved something more than a parade of experts.1

Cockran called to the stand a portly man named Alfred West, who offered a tale of his own encounter with electricity. While strolling one recent summer day along the Palisades, high above the Hudson River in New Jersey, West sought shelter from a thunderstorm under a large tree. "I heard a shock which seemed to be an explosion," West testified, "and that ended my experience." The lightning bolt threw him twenty feet and blew off his pants, underclothes, socks, and shoes. When he woke up, his friends gave him some brandy and sent for medical help. The physician who came to the scene subscribed to the popular theory that a dangerous amount of electrical fluid lingered in the bodies of shock victims, rather like an overdose of a drug. He prescribed a folk remedy to "draw off the electricity: "Put his feet in warm water, and just pull on his toes the same as you milk a cow7," the doctor said.

"They done so," West explained to Cockran, "and I could feel the electricity go out of me."

"How did you feel it go out?" asked Cockran.

"The same as though you would strike your elbow and you could feel it down the fingers."

West had spent three weeks in bed after the accident, and he still bore its scars. The bolt scorched the hair off his chest and groin, and a four-inch-wide swath of burned skin ran from his chest down his right leg, then curled up around his left leg like a ribbon. His chest bore a delicate tracery of pale lines, like the veins on a leaf.2

West was important to Cockran because he was still alive. When Cockran examined electrical experts, he asked them whether a dynamo could produce enough current to throw a man twenty feet, or strip his clothes off, or shatter even a broomstick, much less a tree. The answer was always no. As Cockran saw it, if an electric charge could be powerful enough to toss a man like a doll and strip him naked—and still not kill him—then the apparently weaker electric force of an execution 175 dynamo could not be counted on to kill.3

Cockran delivered the same message by trotting out men who allegedly survived severe electric shocks. "I have had five or six, where I know it was 1,000 volts, right from the machine," said Carpenter Smith, a Westinghouse manager. On various occasions he had accidentally grasped the bars of a live switchboard, touched the poles of a dynamo, and stepped on uninsulated wires. According to Smith, taking the shocks felt like being "kicked by a mule" or "struck with a bundle of loose rods."

Despite the pain, Smith said, such shocks were not a major concern. He told of the time when one of his employees took a big shock that burned his left palm to a crisp black. "I gave him fifty cents," Smith testified, "and told him to go and get a big drink of whisky and call at the doctor's on the way home."

"He took the first part of your advice, I suppose?" Cockran asked dryly.

"He did," Smith replied. "Then he came back after getting the drink of whisky. He wanted to come back and go to work.

"We don't count a 1,000 volt shock anything in the business," Smith told Cockran. "I don't mean by that a man would go and take hold of it, but I don't know a lineman in my employ who hasn't had it time and time again." His fellows felt the same way. "If a man gets a shock like that, he doesn't lay up. He shakes his fingers and thinks he was foolish to get in the road and goes on with his work."4

ALSO TAKING THE STAND was Charles Tupper, who ran a restau­rant on Eighth Avenue in Manhattan and lived above it with his wife and their dog, Dash, a St. Bernard-collie mix. One day early in July he had been in front of the restaurant watching two Western Union men cut dead telegraph wires down. Mrs. Tupper, who was upstairs, sent Dash down with a newspaper to deliver to his master. His task completed, Dash ran along the sidewalk and stepped on a wire that was not dead. Stripped of insulation, it had draped across an electric light wire, with its ends dangling to the street. "When he put his paw on the wire he jumped about two or three feet in the air," Tupper said. Dash gave a piercing yelp and fell onto the wire. His owner started forward to pull him away, but the lineman held him back, explaining that if Tupper touched the dog, he would be shocked himself. In any case, the lineman said, Dash was already dead.

Tupper called to a nearby police officer: "Arrest this man," he said. "I will hold somebody responsible for the dog if he is dead." The officer apprehended the lineman and hauled him off to the station house. Tupper then went upstairs to tell his wife, who fell on the bed and wept. "She became prostrated on account of thinking so much of the dog," Tupper said softly.

Dash lay on the wire for fifteen minutes before someone lassoed him with a rope and dragged him off. Tupper put Dash on the floor of the restaurant, not ready to give him up for dead. A man from a lighting company told Tupper to scrape a hole in the earth and put Dash in it, because the earth "would draw the electricity from him." He did so. That was at about four in the afternoon. Six hours later, Dash began twitching his hindquarters and moving his head and eyes. Tup­per and his wife offered him milk and brandy, which he refused, so they rubbed his body with alcohol and carried him to their bedroom, where he stayed for five days, gathering strength.

After Tupper related this tale, Dash himself made an appearance in the healing room. The lawyers and witnesses examined the deep burns on his left foreleg and right shoulder. "He appeared to be well, but not frisky," the World observed.5

"This dog may do more to save Kemmler's life than all his lawyers," Cockran said.6

DASH WAS the sentimental favorite of the Kemmler hearings. Amid all the testimony regarding dog-killing experiments, the spectators were 177 relieved to hear the story of a dog whose owners loved him and cared whether he lived or died. The dog also raised a scientific question. Kemmler's lawyers suspected that many of the dogs experimented upon at the Edison laboratory had merely been stunned, like Dash, and that the true agent of death had been the dissecting knife.

These matters had a peculiar resonance in the summer of 1889. A few months earlier a famous mind reader named Washington Irving Bishop had fallen unconscious during a Manhattan performance. Later that night doctors pronounced him dead and conducted an autopsy. They overlooked the note that Bishop always carried explaining that he was prone to deathlike, cataleptic trances and warning doctors to be cautious in pronouncing him dead. Bishop's wife charged that her husband had been murdered by dissection, and a prolonged scandal ensued.7

The Bishop episode revealed lingering uncertainties in the definition of death. At the end of the nineteenth century the fear of premature burial was still common, and doctors constantly created new ways to check for signs of life. Pulse and breath were still thought to be the most unequivocal evidence, but determining whether these functions had ceased proved difficult. Suspecting that breath might not be detected by the old method of holding a mirror to the nose, physicians submerged corpses in water to check for bubbles. Notwithstanding the availability of the stethoscope, some thought opening an artery was a better way to check for motion of the blood. Even in the 1880s some physicians checked for life by burning the skin, jabbing a needle into the heart, or applying a "nipple pincher." A few still insisted that the only sure sign of death was putrefaction.8

If death eluded definition even in normal circumstances, the added element of electricity—the force long linked to the spark of life—confused matters further. Victims of accidental shocks, like those of drowning or strangulation, had been known to revive. Many feared that electrical execution would simply stun its victims and fail to kill.9

Dr. Frederick Peterson, the eminent neurologist who had assisted at the Edison laboratory experiments and who had done more research on electrical killing than any other physician, was called to testify. He explained that after he cut open one of the dogs killed by electricity, its heart continued to beat for thirty-six minutes.

"You considered this dog dead?" one of Kemmler's lawyers asked with surprise.

"Certainly," Dr. Peterson replied. "That is not an uncommon thing."

"So, if you cut a man, or human being, open, and found his heart beating, you would continue the examination, regardless of the fact that his heart was beating?"

"Yes, if I thought he was dead."

"And his heart could be beating, and he be dead?"

"Yes, I think so."10

The referee pursued the line of questioning.

"How does death result from electricity?" he asked Dr. Peterson.

"That is not known."

"How does it result from hanging?"

"By cutting—either breaking the spinal cord or cutting the vertebrae, or by injuring the spinal cord, or by suffocation."

"And in the application of electricity you do not know how it is caused?"

"We know that breathing ceases, and that the heart will stop beating also," Dr. Peterson explained. "We say death results from that—but why those things stop we do not know."11

Witnesses expressed many opinions as to how electricity killed. Brown explained that men receiving shocks died either from "blows delivered to the nerves," "paralysis of the heart," or decomposition of the blood through the process of electrolysis.12

Elbridge Gerry said electricity "would cause death by an instantaneous paralysis of the whole system."

Cockran, incredulous, repeated the phrase: "The instantaneous paralysis of the whole system?"

"A general paralysis of the entire nervous system," Gerry said.

"Don't you think that is a good deal of gibberish?" Cockran asked.

"No," Gerry replied grimly.13

The explanations of the physicians offered much of the same. Dr. George Fell explained that electrical death was "caused by the coagulation of the protoplasm of the body through the force of the electrical current." Dr. A. D. Rockwell, the expert in electrical medicine who had assisted the state in its killing tests, said, "Well, such a current would, I suppose, by its mechanical effects, produce a rupture of tissues in the interior of the body, the tender tissues; and it would immediately stop the action of the heart through the interior—produce paralysis of the nerve centers." He paused, then admitted, "No ones knows exactly the details of the effects, but that is about it."14

The testimony exposed the shaky scientific foundations of electrocution. As many observers recognized, in the absence of a precise definition of death or a clear understanding of how electricity killed, the claim that electricity caused death "instantly" and "painlessly" was entirely vacuous.

WILLIAM KEMMLER'S legal team had a two-point strategy: to prove that electricity could not be counted on to kill, and to hint that those who supported the law had unsavory motivations. Dash the dog and other surviving victims of accidental shocks had supported the first point. Subsequent witnesses gave Cockran an opportunity to work on the second.

Harold Brown sat at the elbow of Deputy Attorney General William Poste throughout the hearings, making notes and whispering advice regarding technical points. Cockran had the first opportunity to examine Brown on the witness stand, and he asked him about how he became involved in the animal-killing experiments.

Brown replied, "In June and July of last year I began a series of experiments, not having any reference to electrical execution, but to determine as nearly as possible the comparative danger between the two different classes of current."15

Referee Becker interrupted with a few questions of his own for Brown: "Are you connected in any way with any of the electric lighting companies?"

"No, sir."

"Or have you any connections with the Edison company?"

"No, sir."

"Or Mr. Edison?"

"No, sir, except a personal acquaintance. I have received a great many favors at his hands; it is entirely a personal friendship."

Cockran resumed his questioning: "Your motive was a purely philanthropic one?"

"And to defend my own reputation."16

Cockran then asked about the bitter patent battles being fought in the courts: "There is a contest between the Westinghouse Electric Light Company and the Edison Electric Light Company as to the use of these incandescent burners?"

"I understand so," Brown said.

"And there is considerable feeling between the two corporations?"

"Of that I cannot say."

"Don't you know anything about it at all?"

"Not from actual knowledge."17

At Cockran's request, Brown submitted to the court an illustration of the execution apparatus he designed, which showed a reclining chair with footrest and straps, a generator, a switchboard, and other electrical apparatus. Even here Brown had not been able to resist the opportunity for propaganda. On the generator, in the tiniest script possible, he had added a label: "Westinghouse Electric, Pittsburgh."18

Brown's counterpart on the opposing side was Franklin Pope, a Westinghouse employee. Pope used the pages of the Electrical Engineer, which he coedited, to attack both Edison and the electrical execution law. Cockran's positions on technical matters—even the particular examples he used—so closely matched Pope's that it is obvious the two developed their case together.

When Cockran asked him whether there was a difference in safety between the two types of current, Pope did admit that a "continuous current is probably less dangerous than an intermittent or alternating current." Although alternating current could kill a man, Pope said, it would be "extremely painful."*

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Harold Brown submitted this plan for electrical execution as evidence during the hearings phase of Kemmler's appeal. On the generator he added a label reading "Westinghouse Electric, Pittsburgh."

When attorneys for New York State had a chance to cross-examine Pope, they attacked his credibility. One attorney asked about Pope's employer, Westinghouse Electric: "They object to the use of their machines in the contemplated execution of criminals?"

"I believe they do."

"For what reason, do you know?"

"I suppose for the reason the public would naturally suppose that a machine that was used for the express purpose of killing or ending human life would be an unsafe one to put into commercial use."19

"Has the company engaged counsel to urge this objection?" (At this question, the Times reported, "Mr. Cockran suddenly became intensely interested in the architecture of the ceiling.")20

"I don't know of anything of the kind," the witness replied.

The state's lawyer, however, would not let the matter rest. He said that Pope's testimony could not be trusted: "He is a representative of the Westinghouse people."

"That does not disqualify him," Cockran shouted. "He is not a charlatan." Cockran glared at Harold Brown.21

MUCH OF THE TESTIMONY of both Brown and Pope focused on one technical matter: the electrical resistance of human beings. In order to kill, the current had to be strong enough to overcome the resistance of the victim's body. There were ways to lower a person's resistance—such as clipping the victim's hair and covering the electrodes with wet sponges—but the executioners had to have a rough idea of the victim's resistance in order to be sure that the current used would be strong enough to overcome it. Brown claimed that 1,500 volts would overcome the resistance of any man. But according to Cockran and Pope, the resistance of living creatures varied enormously, and there was no good way to measure it. As a result, they claimed, the state could never know how high a voltage would be needed to kill.

The testimony on resistance became so technical and so confused that Referee Becker asked that more experiments be made. As with earlier questions regarding electrical execution, it seemed only Thomas Edison's laboratory could provide the answers. On Friday morning, July 12, Becker, the lawyers, and a knot of reporters journeyed to New Jersey. Edison himself, along with Arthur Kennelly, was off in Pennsylvania experimenting with his latest project, a magnetic iron ore separator, so the experiments were conducted by Brown and another Edison employee. Each test subject placed his hands in two jars containing a zinc sulfate solution, and a low-voltage current was passed through his body between the electrodes. A device called a Wheatstone bridge-named for Charles Wheatstone, one of the inventors of the electric 183 telegraph—was used to measure his resistance. The measurements of the men ranged from 1,000 to 10,000 ohms. According to Brown, this was within the expected range and proved that resistance would prove no roadblock to efficient killing. Cockran remained unconvinced.22

REFEREE BECKER encountered trouble securing the testimony of the death penalty commissioners. Matthew Hale telegraphed from Albany to say that he "could throw no light on the subject" of why the commission recommended electricity, a surprising admission that indicated he had held little power in the final decision. Alfred South­wick was vacationing in Europe. That left Elbridge Gerry, who at first declined to testify on the grounds that he was in Newport preparing for a cruise with the New York Yacht Club. Becker telegraphed to Newport to insist that Gerry postpone his cruise and return to New York. Gerry appeared at the hearings fresh from his yacht, his commodore's cap in his hand.23

Under questioning by Cockran, Gerry testified, "My individual idea is that the dose of morphia would be most efficacious."

"But you surrendered your opinion on account of your associates?" Cockran asked.

"Yes." Alfred Southwick pushed electricity from the start, Gerry explained, but he had resisted that method until the committee received advice from a man that he considered the "greatest electrician of modern times."

"That was Mr. Edison?" Cockran asked.

"Thomas A. Edison."

"Did you consider he was the greatest medical man?"

"No, the greatest electrician."

"Even then did you consider he was a good authority to tell you what would destroy human life?"

"Yes."

Cockran continued: "You have a very great confidence in electricity?"

"I have more confidence in the ability of certain electricians—Thomas A. Edison."

"And you think Edison somewhat of an oracle, do you not?" Cock­ran said.

"Yes."

"You think he knows more about it than anyone in the United States?"

"Yes, and I haven't seen any foreigner that knows as much about the subject."

"And it was in that way that you came to report that bill?"

"Yes, sir; that was one of the main reasons."

"You finally decided that where Edison spoke there was no room for doubt, and you recommended the bill?"

"I certainly had no doubt after hearing his statement."24

A FEW DAYS AFTER the hearings began, Harold Brown wrote to Samuel Insull, the vice president of Edison General Electric, urging him to persuade Edison to testify. "There has been so much absurdity in the testimony of Mr. Westinghouse's witnesses, that Mr. Edison could dispose of by a word," Brown wrote. "Mr. Johnson [Edison General's president] thinks this important." Referee Becker was so anxious to hear Edison's views that he offered to take the hearings to Edison if Edison could not come to the hearings. The inventor made things easier by appearing in the hearing room on the morning of July 23. Despite the crowded hearing room and the sultry weather, the inventor appeared cool in his black suit and wore an easy smile, with an unlighted cigar between his teeth. He offered $100 to Carpenter Smith, the Westinghouse man who claimed to have survived several 1,000-volt shocks, on the condition that he take an alternating-current shock of just 100 volts, with the money "paid to his heirs or assigns if necessary." Smith did not respond to the challenge.25

Edison was introduced to Cockran and shook hands with him cordially, then took the witness chair. Attorney General Poste, compensating for Edison's deafness, shouted his questions so loudly they could be heard out on Broadway.26

"Will you explain generally the difference between a continuous and alternating current of electricity?" the attorney general asked.

"A continuous current is one that flows like water through a pipe," Edison said. "The intermittent [alternating] current is the same as if the same body of water was allowed to flow for a given time through the pipe, and then the direction was reversed and it flowed in the opposite direction for a given time."

"Now, what kind of current is produced by the Westinghouse dynamo?"

"The reverse current—the alternating."27

Edison explained that although his company owned the U.S. patent rights for an alternating system used widely in Europe, it had decided not to sell it in the United States.

"Why don't you use it in this country, Mr. Edison?"

"I don't like it."

"Do you think it is dangerous?"

"Yes."

Edison told Poste that alternating current of 1,000 volts would produce rapid death without suffering. That opinion, he said, was based on experiments at his laboratory.

"The experiments made by Mr. Brown and Mr. Kennelly?"

"Some of them," Edison said. "I only saw one or two."

"Has Harold P. Brown any business connection with yourself or the Edison company?"

"Not that I know of," Edison replied.28

Poste concluded his examination and turned the witness over to Cockran. Edison was sitting in a corner of the room, and Cockran paced the room's center, speaking rapidly. The inventor had trouble hearing, so he dragged his chair into the middle of the room, and the lawyer poured out his questions into the inventor's good ear.29

"Are you a pathologist, Mr. Edison?"

"No, sir."

"Do you understand anything about anatomy?"

"No, sir."

"You do not claim to understand anything about the structure of the human body?"

"No, sir, only generally"

"That is," Cockran said, "you know we all have got arms and legs—you mean you have got an idea?"

"Got a good idea of what is inside of us."

"Now, you do not even know what the component parts of the human blood are, do you?"

"Pretty near."

"What are they?"

"Carbon, hydrogen, oxygen, and nitrogen."

"Now you have mentioned pretty much every gas, haven't you?"

"I cannot help it; that answers the question."

Cockran turned to the question of whether electrocution would mutilate its victims, and Edison readily admitted that applying a really powerful current might cause burning.

"You would burn him up quick?"

"Carbonize him," Edison said.

"Right away?"

"Instantly."

"Suppose you took this wicked Westinghouse current"—Cockran's voice was heavy with sarcasm—"the one that is going to be used on Kemmler . . . suppose you kept it up for five or six minutes with 1,500 volts—with the extra exciting dynamo working, and all other appliances that would get it in its most wicked and aggravating form-how long would it take before you would get him to feel the heat?"30

"I think his temperature might rise up about four or five degrees above normal, and continue there until he was mummified, until the water had all been evaporated out of him."

"That is a new term," Cockran observed. "You think Kemmler would 187 not be carbonized, but mummified?"

"Mummified," Edison said.31

HAVING FAILED to ruffle him on technical questions, Cockran pressed Edison on the rumors of conspiracy.

"Now, Mr. Edison, do you know Mr. Brown pretty well?"

"Fairly well. I have seen him about a dozen times."

"When did you first become aware of his existence?"

"I think the first time I saw him, he came out there about this very business, to Orange."

"And he was a stranger to you then?"

"I think so. I do not think I had ever seen him before."

"Did he come up there and ask you to let him have your laboratory for the purpose of killing dogs?"

"He wanted to try some experiments."

"Are you in the habit of giving your laboratory to everybody that asks you?"

"Yes, sometimes I let them experiment there."

"Might I entertain the hope that I might be allowed myself to go there?"

"Yes, sir," Edison replied with a smile. "You can come at any time. I will be glad to see you."

"Mr. Brown evidently commended himself to your approval during these experiments."

"He seemed to be a pretty nice kind of fellow, and it was no trouble to me, and I let him do it."

Cockran decided to try a more direct approach: "Now, Mr. Edison, there is a great degree of feeling between you and Mr. Westinghouse?"

Edison paused for several beats. "I do not dislike Mr. Westing­house," he said finally.32

"There is a contest between you in the courts, isn't there?"

"Yes, sir."

"And in relation to some of these electric-light inventions?"

"Yes, sir."

Surprisingly, Cockran let the matter drop there. As the lawyer paused, Referee Becker asked Edison whether an electrician could operate the execution machinery without hurting himself. "Yes, sir," Edison said.

Cockran jumped in: "That is, you believe he can. You do not know anything about it."

"Of course I have got to testify to my belief," Edison retorted. "I have not killed anybody yet."33

Cockran had had enough. He lit Edison's cigar and dismissed him from the stand.34

THE KEMMLER HEARINGS exposed profound disagreement among electricians concerning whether electricity could be counted on to kill, and physicians betrayed their ignorance about the effects of electricity on the body. Elbridge Gerry, the chairman of the death penalty commission, admitted that it was Edison who had persuaded him to back electricity. Yet Edison admitted that he knew almost nothing about human physiology or the details of electrical killing. Despite all of this the press, much like Gerry, remained in thrall to Edison's views. The World contrasted "the confused, heterogeneous and imbecile testimony" of the law's opponents with "the curt and unequivocal testimony of Thos. A Edison." "The Kemmler case at last has an expert that knows something concerning electricity" the Albany Journal wrote. In that newspaper's view, Edison was "a man who had nothing to sell and no purpose to buy."35

*Pope himself died from an alternating-current accident in 1895.

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