NOTES, 287 • The newspapers seem to have fallen into error as to the ground of the decision of the United States Supreme Court in the Kemmler case, 136 U. S. 436. The court is criticised for holding that execution by electricity is ilot a cruel and unusual punishment, prohibited by the eighth amendment to the Constitution of the United States, — that cruel and unusual punishments shall not be inflicted. But the counsel made no claim upon this ground, and in fact no lawyer would assert that the eighth amendment gave the United States courts any right to inter- fere in this case. The court expressly said : " It is not contended, as it could not be, that the eighth amendment was intended to apply to the States." Chief Justice Marshall had decided, in Barron v. Baltimore^ 7 Pet. 243, that this provision was a limitation solely upon the Federal government. The ground which Kemmler's counsel took was that the law under which the prisoner was sentenced violated the fourteenth amendment, — first, because it abridged the rights and immunities of a citizen of the United States ; and, second, because it was not due process of law. The Slaughter-House cases, 16 Wall. 36, annihilated the first point, and the second was untenable. The court seemed to intimate, however, at the close of the opinion, that a punishment might be so cruel as not to be *' due process of law.'* Even this is very doubtful. A State could probably revive burning at the stake, as far as United States authority is concerned. Although the court of New York held that execution by electricity was not repugnant to its own constitution, that opinion might well be changed in the light of subsequent experi- ment. Apropos of this subject, the phrase "cruel and unusual punish- ment'* probably refers to quality and not quantity, or, as the Supreme Court of Kansas said, to " kind and not duration.'* ^ The facts of that case bring out the distinction in a forcible and interesting manner. By an act of the Legislature in 1887 the age of consent was raised to eighteen, and unlawful intercourse with any female under that age was made punishable by not less than five nor more than twenty-one years. In such a case, therefore, five years is the least possible punisliment for fornication. Such a severe punishment, it was argued, was cruel and unusual; but the case was decided contrary on the distinction between amount and kind. The court remarked that the punishment was "a severer one than had ever before been provided for in any other State or country for such an offence." In view of the conflict of authorities in the United States as to whether a common carrier shaU be allowed to limit his liability for the loss of goods, even where the loss occurs through his own negligence, it is interesting to note a recent decision in the Supreme Court of Penn- sylvania, in the case of Pennsylvania R,K. Co. v. Weiller?' The court distinctly lays down the rule that although there is an agreed valuation of the goods between the shipper and the carrier, and although it is ex- pressly stipulated that the carrier shall not be liable beyond such valu- ation for loss occurring from any cause whatever^ and in consideration of such agreement a lower rate of freight is charged, yet the carrier is not thereby relieved from liability for the actual value of the goods lost. 1 State V, White, 25 Pac. Rep. 33. 2 29 Am. Law Reg. 766 (1890).
