Opinion in Case of John Most the Anarchist
The men who framed the
Penal Code of the State of New York undertook to specify all the
crimes known to the law, to state their character, whether felonies
or misdemeanors, and to provide a penalty in each class of crimes
by naming a minimum and maximum penalty in most cases. The attempt
to thus codify the criminal law was declared by many able jurists
an impossible undertaking. It was argued that the system of laws
called the common law was the accumulated wisdom of ages; that it
was flexible and able to adapt itself to every new manifestation
of crime that might appear, keeping within the spirit of established
principles of justice, but always able to cope with any form of
crime that might develop. That there was great force to this objection
was felt by the codifiers and by all jurists. They knew the infirmity
of language and the fallibility of the human intellect in undertaking
to define in precise terms every crime. On the other hand, the common
law of crimes was in many respects overgrown with a multitude of
precedents and decisions, and its roots ran back through so many
centuries of time that it was only to be learned by wading through
a mass of books so great that there was much difficulty in some
cases in determining what was the common law. After framing 674
sections of the Penal Code, specifying crimes and punishments as
completely and fully as the [306][307]
codifiers were able to state them, they framed the 675th section,
which contains these words:
“A person who wilfully [sic]
and wrongfully commits any act which seriously injures the person
or property of another, or which seriously disturbs or endangers
the public peace or health, or which openly outrages public
decency, for which no other punishment is expressly prescribed
by this code, is guilty of a misdemeanor.”
The plain and obvious
intent of this was to leave in the code a little of the flexibility
of the common law to meet cases which they had failed to specify
in the preceding sections. That the words of this part of the section
are general is just what might be expected from the nature of the
case. The purpose of the section is to try offenders for something
not “expressly prescribed by this code.” If the offence was one
expressly prescribed by the code, then clearly the offender must
be tried under the section prescribing it. It is only offences not
prescribed in the code that can be tried under this section. This
section is the legislative mandate and warrant for courts to look
outside of all the other sections of the code to discover offences
not specified in the code. Otherwise the section is meaningless.
It is fair to presume that the legislature thought that crimes would
crop up that would “seriously injure the person or property of another,”
or “seriously disturb or endanger the public peace,” or “openly
outrage public decency,” that were not mentioned in the body of
the code, and so this commission was issued to the courts to explore
such new fields of crime as they may appear from time to time.
We are, therefore, brought face to
face with the question whether the acts charged in the information
in this [307][308] case are criminal
acts within the spirit and intent of this section. That the section
is general in its words and not specific was a necessity of the
purpose of this enactment. That the crimes that come within the
range of this law are comparatively new and novel to the law is
to be expected. If it were otherwise, they would have been specified
in the body of the code. The acts that might be committed to produce
the results condemned by the section were not common acts then generally
known to criminal laws. If the conditions of “injuries to persons
or property,” or “serious disturbance and danger to the public peace,”
or “openly outrage of public decency,” are found to exist, it then
becomes the duty of courts to find the author of those conditions
and punish him as the law directs.
We hold that the teachings of the
doctrine of anarchy “seriously disturb or endanger the public peace,”
and also “openly outrage public decency.” To give this construction
to the law in no way abridges the liberty of conscience in matters
of religion, nor the freedom of speech on all questions of government
or of social life, nor does it in any way trespass upon the proper
freedom of the press. The point and pith of the offence of anarchists
is that they teach the doctrine that the pistol, the dagger, and
dynamite may be used to destroy rulers. The teaching of such horrid
methods of reaching an end is the offence. It is poor satisfaction
when one of their dupes has consummated the results of their teaching
to catch him and visit upon him the consequences of his acts. The
evil is untouched if we stop there. In this class of cases the courts
and the public have too long overlooked the fact that crimes and
offences are committed by written or spoken words. We have been
punishing offenders in [308][309] other
lines for words spoken and written without waiting for an overt
act of injury to persons or property. The press is restrained by
the law of libel from the too free use of words. Individuals can
be punished for words spoken or written, even though no overt act
of physical injury follow. It is the power of words that is the
potent force to commit crimes and offences in certain cases. No
more striking illustration of the criminal power of words could
be given, if we are to believe the murderer of our late President,
than that event presents. The assassin declares that he was instigated
and stimulated to consummate his foul deed by the teachings of Emma
Goldman. He is now awaiting execution for the crime, while she is
still at large in fancied security. A person may advocate any change
of our government by lawful and peaceful means, or may criticise
the conduct of its affairs, and get as many people to agree with
him as he can, so long as he does not advocate the commission of
crime as the means through which he is to attain his end. If he
advocates stealthy crime as the means of reaching his end, he by
that act commits a crime for which he can be punished. The distinction
we have tried to point out has been too long overlooked.
If our conclusions are sound, it is
the teachers of the doctrine who can and ought to be punished. It
is not necessary to trace and establish the connection between the
teaching of anarchy and a particular crime of an overt nature.
It is a strange spectacle in this
age for a great nation to stand mute and paralyzed in the presence
of teachers of crimes that are advocated only for the purpose of
destroying such nation, and for it to have no power to defend against
such internal enemies. We do not believe the [309][310]
arm of the law is too short to reach those offenders against the
life of the nation or too paralyzed to deal with them. The liberty
of conscience, the freedom of speech, the freedom of the press,
do not need such concessions to save to the fullest extent unimpaired
those sacred rights of a free people.
In the case at bar every fact stated
in the information was conceded on the trial. The article published
in the newspaper called the “Freiheit,” annexed to the information,
was printed in the German language, but the translation of it was
admitted by the defendant to be correct. It was also admitted that
the paper was published and circulated in the city and county of
New York, and that on the 7th day of September, 1901, the date of
the issue containing the article in question, the defendant was
the publisher of said newspaper; that the article was published
and circulated before the assault on the late President of the United
States. It was contended that the defendant was not the author of
said article; that the same was written and published by one Carl
Heinzen about fifty years ago, and was reprinted by the defendant
in the “Freiheit” on March 14, 1885; that the defendant, John Most,
as soon as he learned of the assault upon our late President, made
all possible efforts to withdraw the newspaper containing the article
in question from circulation; that with the exception of those which
had been sent through the mail and delivered to the International
News Company, no more copies had been sold, so far as known to the
defendant. It was also admitted that the copy of said newspaper
attached to the information was purchased by the complainant from
the International News Company.
The article is the leading one on
the editorial page [310][311] of the
paper, and it is headed “Murder vs. Murder,” in display type. The
article begins: “As Heinzen said nearly fifty years ago (this is
true even to-day), there are various technical expressions for the
important manipulation by which one human being destroys the life
of another. These expressions are, ‘To kill, to destroy, murder,
to shoot, to slay, to poison, to put out of the world, deport to
Cayenne, get out of the way, to behead, to strangle, to cut down,
to be killed by the sword, to execute by shooting, to imprison for
life, to execute, etc.’ The means, the pretext, and the reasons
are various, but the purpose is always the same—the destruction
of a life that is hostile or a hindrance.” “It would be a senseless
weakness to disguise by sentimental lamentations the frightful fact
that the best means of historical development has been murder, and,
in fact, murder in the most colossal shape; and this is still true.”
“Let murder be our study—murder in every form. In this one word
lies more humanity than in all our theories.” “The despots are outlawed;
they are in human society what the tiger is among animals; to spare
them is a crime. As despots permit themselves everything, betrayal,
poison, murder, etc., in the same way all this is to be employed
against them. Yes; crime directed against them is not only right,
but it is the duty of every one who has an opportunity to commit
it, and it would be a glory to him if it was successful. Only towards
mankind is there a moral of consideration; the moral toward beasts
is destruction.” “Murder as a necessary defence is not only permissible,
but it is sometimes a duty towards society when it is directed against
a professional murderer.” “The way of humanity leads over the summit
of barbarism. This is just the law of necessity dictated by reaction.
We cannot get around it, as we do not [311][312]
wish to renounce the future. If we wish to design we must also wish
the means; if we wish the life of the peoples we must wish for the
death of their enemies; if we wish for humanity we must wish for
murder.” “It would be quite a new war policy if in the circus the
panther permitted the buffalo to prescribe to him that he should
defend himself with horns against horns, and that he should not
immediately spring upon his back from behind. The buffalo militarism
request that the revolutionists disarm to the skin, should march
openly against him after declaration of war in optimia forma
militari, with cannons and ammunition wagons, with cavalry and
infantry, after the people had been disarmed. We do not suffer from
such weakness; we say murder for murderers; save humanity through
blood and iron, poison and dynamite.”
The above are a few extracts from
the translation of the article in question. It is impossible to
read the whole article without deducing from it the doctrine that
all rulers are enemies of mankind, and are to be hunted and destroyed
through “blood and iron, poison and dynamite.” It is no answer to
the evil and criminal nature of this article to claim that it was
written for the purpose of destroying crowned heads. It inculcates
and enforces the idea that murder is the proper remedy to be applied
against rulers. The fact that it was published fifty years ago and
republished about fifteen years ago only emphasizes and gives added
point to the criminality of republishing it at any time. It shows
a deliberate intent to inculcate and promulgate the doctrine of
the article. This we hold to be a criminal act. It is not necessary
to trace any connection in this article with the assassination of
the late President. The offence here, in the eye of the law, is
[312][313] precisely the same as if
that event had never occurred. The murder of the President only
serves to illustrate and illuminate the enormity of the crime of
the defendant in teaching his diabolical doctrines.
Such articles and doctrines have no
proper place in this free country. They stimulate the worst possible
political ideas and passions, and, carried to their logical conclusion,
would destroy the government. It was said by a distinguished English
judge, in the celebrated Somerset slave case, that “No slave can
breathe the free air of England.” It would be well if the laws of
this country were such that it could be said truthfully that no
anarchist can breathe the free air of America.
New York, October,
1901.
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