Preface to Volume Fourteen [excerpt]

     No greater contrasts can be found in the history of great crimes and great criminal trials than are illustrated in the assassins, Charles J. Guiteau (p. 1) and Leon F. Czolgosz (p. 159) and in the judicial proceedings that ended in their execution for the murder of two Presidents of the United States. No other historic tragedy ever produced such a vile, ridiculous and unheroic character as Guiteau, a low and disreputable politician, who, disappointed in his desire for a public office, takes his revenge in murder and then poses as the agent of the Almighty, commissioned to save the country from destruction. In his Recollections of an Alienist, Dr. Hamilton wrote: “At the time, I said, ‘Guiteau is only a shrewd scamp with the plausibility of an Alfred Jingle in swindling boarding-house keepers and evading the payment of his debts; the visionary enthusiasm of Micawber or Colonel Sellers; the cant and hypocrisy of Aminidab Sleep or Uriah Heep; the ambition of Erastratus and the murderous manners of Felton, who assassinated the Duke of Buckingham, of whose crime the the killing of Garfield was an exact counterpart.’ Like one of the murderers in Macbeth, he might have said:

                                        And I another,
So weary with disasters, tugged with fortune,
That I would set my life on any chance
To mend it or be rid on it.”

     Czolgosz was a simple, uneducated, foreign youth, an ordinarily industrious workman, without bad habits and honest in his relation with fellow men, but unhappily

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listening to the advocates of anarchy and becoming imbued with their doctrines, until morbidly brooding over the alleged wrongs of his class and persuaded that anarchy was the only remedy, determined to destroy the President because he was persuaded that anarchy could never make any headway as long as the great mass of people loved the head of the State as they did President McKinley. Why the notorious Emma Goldman, whose teachings inspired his crime, was not put in the dock with him is hard to explain, unless it was that the laws of New York were defective in this respect. There certainly was a good and sufficient precedent in the trial and conviction of the Chicago Anarchists only 15 years previous. (12 Am. St. Tr., p. 1.)
     The defense in both trials was insanity, though Guiteau dishonestly and Czolgosz sullenly, denied the truth of the plea made for them by their counsel. What is insanity from a legal standpoint? Except in a few States, the law is adapted to protect the public against the man or woman who has made himself a self-declared judge, jury and executioner for the redress of injuries to himself or some near relative. Nevertheless, criminals in all parts of the United States escape punishment not because of their legal insanity, but through the emotional insanity of judges and jurors. The history of insanity in criminal courts has a place here. The common law refuses to punish an insane man for acts committed by him while in that condition. It is often argued that as the object of punishment of criminals is to protect society, madmen who commit crime should be treated like mad dogs; but the law is otherwise. It being then only necessary for a criminal to prove himself insane in order to go free, the defense of insanity has become a favorite one when all other defenses and excuses

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have been found wanting. And it has become a difficult question for the courts to decide. “We are not physicians,” exclaim the judges, “nor can we look into the person’s brain, and this being so we must have a legal test of insanity.” And what that test should be has bothered the courts not a little. Lord Hale who tried some of the first cases in which the “insanity plea” was set up, thought that if the prisoner had as much sense as an ordinary four-year-old child, he was, a fit subject for punishment. This was called the “child test” and was followed by a good many judges until about 1724 when Chief Justice Tracy introduced a new test. “The man who is to escape punishment for his crimes,” said he, “must be a man that is totally deprived of his understanding and memory and doth not know what he is doing no more than an infant, than a brute or a wild beast.” Finally in 1840 a looney pot-boy named Oxford tried to kill the Queen as she was taking a drive one summer afternoon. Denham, C. J., in charging the jury told them that the question was whether the prisoner knew the right and wrong of the act he was committing; if he did he was responsible; if he did not he was not responsible. This is called the “right and wrong” test and is the law in England and in nearly all the states. In New Hampshire and a few others, the courts say that there ought to be no legal test of insanity; that the question must simply be, was the man’s insanity the cause of his committing the crime? This is the “medical test” and as it is substantially handing the whole matter over to the doctors to settle, it is very popular with and much advocated by that profession. In Kentucky a peculiar idea has taken possession of its courts. It has been aptly said by an English judge that there are three powerful restraints existing, all tending to the assist-

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ance of the person who is laboring under a temptation to commit a crime—the restraint of religion, the restraint of conscience and the restraint of law. But in Kentucky the temptation itself is held a legal excuse. Their courts recognize what they call “moral insanity”; that is to say, the plea of “I couldn’t help it; I had an irresistible impulse to do it,” is accepted as an excuse for a criminal act. If there happens to be a woman in the case, the defense itself becomes irresistible. Such a doctrine has no place in the common law of England or in the jurisprudence of all those states where the “right and wrong” test prevails. “The law,” said another English judge, “does not acknowledge the doctrine of an uncontrollable impulse, if the person was aware it was a wrong act he was about to commit. A man might say he picked a pocket from some uncontrollable impulse and in that case the law would have an uncontrollable impulse to punish him for it.” And so said the Supreme Court of North Carolina where an astute counsel attempted to clear his client on the “moral insanity” theory.

     “The law does not recognize any moral power compelling one to do what he knows is wrong. ‘To know the right and still the wrong pursue’ proceeds from a perverse will brought about by the evil seductions of the evil one, but which nevertheless, with the aids that lie within our reach as we are taught to believe may be resisted and overcome; otherwise it would not seem to be consistent with the principles of justice to punish any malefactor. There are many appetites and passions which by long indulgence acquire a mastery over men more or less strong. Some persons indeed deem themselves incapable of exerting will sufficient to arrest their wrong-doing, speak of them as irresistible and impotently continue under their dominion. But the law is far from excusing criminal acts committed under the impulse of such passions. To excuse one from criminal responsibility the mind must be insane. The accused should be in such a state from mental disease as not to know the nature and quality of the act he was doing, or if he did know it that he did not know he was doing what was wrong; and this should be clearly established. This test, a knowledge of right

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and wrong, has long been resorted to as a general criterion for deciding upon legal accountability and with a restricted application to the act then about to be committed, is approved by the highest authorities. If the prisoner knew what he did was wrong, the law presumes that he had the power to resist it against all supernatural agencies, and holds him amenable to punishment.”

     Another writer has well said:

     “If the unlawful act of the prisoner is simply a lesion of the will, moral insanity, if such persons are to be deemed irresponsible—fit objects for Bedlam but not for punishment—our jails should be thinned and lunatic asylums multiplied. But it is the duty of a Christian and a rational being to keep down these unruly passions, and the physician who contends that man has no free will and cannot control his ungovernable appetites, seems as unsound in his theology, as erroneous in his law. The reader of his Bible dare not admit that intense malevolence alone, even without ground or provocation, actual or supposed, is of itself an unfailing proof of insanity, or that a man is mad merely because he is desperately wicked. Reason and religion teach us to reject the modern medical code, fashionable and favorable to our corrupt nature, though it be, that all are insane into whom, to judge from their deeds, Satan has entered; that the more terrible the crime, if perpetrated without apparent motive, the more conclusive is the existence of the malady. To such paradoxes the law of England cannot venture to listen. The law cannot tolerate the doctrine of making the crime itself proof of irresponsibility, without inflicting the greatest individual injustice and undermining the safeguards of society, without proclaiming practical immunity to such wretched beings as Greenacre, Gleeson, Wilson and Manning; to all, in short, who show the mind diseased by inflicting horrors in the newest shape, and inventing fresh modes of ghastly murder.”¹

     The charge of Judge Cox to the jury in the Guiteau trial is a masterly exposition of the “right and wrong” test which is the law of the Federal Courts. This asks the jury but one question: Did the prisoner know the nature and quality of his act and that it was wrong? i. e. contrary to law? Medical science asks: Was he at the time he committed the act a victim of mental disease or medical unsoundness? In the Guiteau trial, the great weight of medical testimony declared him sane,

     ¹ Modern State Trials, W. C. Townsend, London, 1850.

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according to the “right and wrong” test. In the Czolgosz trial the experts for both prosecution and defense declared him sane by both the legal and the medical tests.
     Great was the indignation against the assassin of President Garfield by the people of Washington. General Sherman felt compelled, in the first days after his incarceration, to send a considerable military force to guard the jail. And before and during his long and weary trial he was attacked several times by would-be “avengers.” Sergeant Mason, one of his guards, fired a rifle ball into his cell, narrowly missing him, and a substantial farmer named William Jones, one afternoon rode up behind the prison van and attempted to shoot him while he was being conveyed from the court room to the jail. What would have happened had the jury disagreed or had they found him insane? Doubtless he would have been lynched.²
     Czolgosz was for a time in danger, also. “I never,” says an eye-witness to the shooting, “saw such an ugly crowd, and had it been led, it would have broken into the Temple and taken him away from the few people there and lynched him.”³ But the vigilance of the Buffalo authorities, their quick action in putting the criminal beyond the reach of reporters and sensational news-

     ² A story told to the editor ten years after the tragedy is of interest. The narrator was an old soldier of the civil war where he served as a captain of cavalry. “I was one,” he said, “of 100 members of Gen. Garfield’s command in the war who pledged themselves by a secret oath that Guiteau should not escape death. A delegation of us drawn by lot and serving for a week at a time were in the court room every day of the trial. On the day the jury were to return their verdict twenty-five of us were present, each with a loaded revolver in his pocket. Had the verdict been either the prisoner is insane, or the prisoner is not guilty, that very instant twenty-five bullets would have pierced the carcass of the wretch.”
     ³ General Babcock, p. 179.

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mongers and the firm belief of the citizens that he would have a speedy and satisfactory trial, soon removed any apprehensions of this kind.
     The authorities in Washington were as lax as those of Buffalo were vigilant. No sooner was Guiteau jailed than he was permitted to issue an address to the American people. And all through the months of his confinement and trial, reporters and anybody curious to see him were admitted without limit; they came in crowds and his daily interviews and messages to the public were conveyed to every breakfast table until the scaffold closed his mouth. But not a single person except the officers of the Government, the experts appointed to examine him and his counsel—not one reporter even—caught even a glance of Czolgosz until he appeared in the courtroom, or were permitted to speak to him until he passed into the custody of the sheriff to be taken to Albany to be hanged. To the District Attorney the credit for this was due. His course likewise in the permission to the experts for both the State and prisoner to freely meet and consult together and each obtain the same personal knowledge of the prisoner’s mental condition, is highly to be commended. Its result was the complete agreement of all of them as to the prisoner’s sanity. This, while it is the Continental method, was a new departure in the United States. It was thought of in the Guiteau trial, where each side retained its own experts who gave their opinions in accordance with the requirements of the party that paid them. And not only these professional witnesses, but the prisoner’s “sisters, his cousins and his aunts” and anybody who had ever seen or talked to him, were allowed to take the stand and give their opinions as to his state of mind.
     The Counsel for the Government in the Guiteau trial

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were all able and distinguished members of the Bar. Yet the conduct of the prosecution is open to much criticism. Hardly had the testimony begun before they began to show the differences between the “stalwart” and “half-breed” republicans, a perfectly irrelevant matter and one not for their side to go into. To prove the killing and then rest was the proper course.⁴ And there was a marked lack on their part of that official dignity that is characteristic of the English Public Prosecutor and which was so happily displayed in our early political prosecutions, as carried on by those great lawyers Rawle, Bradford, Randolph and Wirt, and whose careful and courteous demeanor towards their opponents is illustrated in several trials in this series.⁵ Mr. Porter’s cross-examination of Guiteau was well done, as it served to impress the jury with his conceit, untruthfulness and hypocrisy. But his closing speech is mainly a mass of vituperative retorts between himself and the prisoner, in which both employed the most virulent terms they could command. A state prosecution should be conducted with dignity and without resort to personal altercation with and vituperation of a prisoner, no matter how vile he may be.
     Guiteau’s counsel were his brother-in-law, a third-class lawyer of somewhat his type, and his wife (who, though not admitted to the bar, was permitted by the Court to act as though she were), a disgraced attorney from another State, and himself. The only reputable member of the bar retained by him, retired from the case after a few days’ experience.
     In preparing for the Czolgosz trial, the Bar Association of Buffalo took the lead, and through its President

     ⁴ See 10 Fed. Rep. 200.
     ⁵ See for example the Trial of Fries, 11 Am. St. Tr. p. 1.

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obtained the appointment of his defenders—for the culprit was too poor to employ counsel for himself—two of the oldest, most respected and most learned lawyers of the county, both of whom had served on the Supreme Court of the State. And the State was represented by a prosecuting attorney whose highest aim was that the prisoner should have all the constitutional rights to which he was entitled and that complete justice should be done. In such hands the conduct of the trial was well nigh faultless. It was not a fight, a duel, a game in which each side was straining every effort to win, but was a sober, deliberate and thorough judicial investigation of a great crime. On the trial Czolgosz’s attitude was one of complete indifference. Never once during the trial or afterwards, did he exhibit any of the mannerism or boastful displays as Guiteau did. He made no complaint of personal wrongs or persecution such as Guiteau was constantly making; he never showed once, as Guiteau did constantly, his satisfaction at being the central figure in a great judicial function, the observed of all observers, nor did he even once endeavor to simulate mental disease as Guiteau’s conduct on his trial indicated as his scheme. When called upon to plead, he refused to answer,⁶ and when he finally said the word “guilty” the judge refused to receive the

     ⁶ Compare the action of the Court with the old common law procedure when a prisoner on arraignment stood mute and refused to plead. The judgment rendered was called the peine et morte and was as follows: “That the prisoner be remanded to the prison from whence he came and put into a low, dark chamber and then laid on the bare floor, naked, unless when decency forbids. That there be placed upon his body as great a weight of iron as he could bear and more; that he have no sustenance save only on the first day, three morsels of the worst bread; and on the second day three draughts of standing water that should be nearest the prison door; and in this situation should be alternately his daily dish until he died or answered.”

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plea and ordered a plea of “not guilty” to be recorded.
     The trial was attended neither by delay nor harassed by the trivial technicalities of the law, so common in trials for murder in the United States. A jury was procured, the evidence heard, the speeches to the jury and the charge of the Judge and a verdict of guilty rendered in fewer hours than it took weeks to convict Guiteau. Czolgosz’s counsel did everything that an honest lawyer could do for a client. Their cross-examination of the witnesses was sharp and searching and in their addresses to the jury they said all that could be said in his favor. None of the devices and tricks of the ordinary criminal lawyer were resorted to by them. They made no motion for a new trial or in arrest of judgment; they asked for no appeal to another Court; they did not attempt to have the case carried through tribunal after tribunal on a host of technical questions which their knowledge of the criminal law might easily have suggested. As sound and learned lawyers they knew that there was no just ground for such subterfuges, and as men of good sense and good citizens they scorned to resort to a deliberate imposition upon the higher courts simply for the purpose of delaying the punishment of the assassin. What a contrast to the Guiteau trial!
     In one of the leading journals of the day, the conduct of the Guiteau trial was summed up thus:

     “Was there ever before in a tribunal of enlightened people such concentrated and accumulated disgrace and real cause for shame? A vituperative criminal, whose impudence and indecency could be equalled only by his fluency and keenness of perception and repartee; a hissing, jeering and applauding audience; perpetually wrangling counsel; all three antagonistic forces often talking and fighting at once; with a judge who, to all appearance was utterly inadequate to manage or control either—such was the trial of an unprecedented criminal, for an unpardonable crime, which for ten weeks disgraced this country and made a shameful spectacle for the whole world. Who, that day after day listened to loud and vengeful

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shouts of the prisoner, to the bickering and quarrelling of the lawyers, could believe that this trial could ever mount to a climax that could, at last, simply express dignity and law”?⁷

     For this the presiding Judge was largely responsible.⁸ He was a good lawyer, a gentleman of the old school, of benevolent temperament, but too mild and long-suffering for such a contest of which he was to be the arbiter. He was unable to even preserve order in the court-room, and marks of approval and disapproval came from the audience without rebuke. The prisoner, as it was said at the time, cared no more for the Judge’s gentle cry of “silence” than he did for the fly he brushed from his nose. A strong Judge—like Cockburn, who tried the Tichbourne Claimant—would have gagged him or removed him from the courtroom, as he had a lawful right to do, and Judge Cox was much criticized for his failure

     ⁷ The Independent, Feb. 9, 1881.
     ⁸ “Such elements as enter into the ‘makeup’ of Judge Cox are rarely seen in any man, north or south, who has achieved success or eminence. Said one who knows him well, ‘I have never seen any man really eminent who had so little self-consciousness. Judge Cox is the most unpretentious man I ever knew. He assumes nothing.’ Judge Walter Cox was born in Georgetown and is by birth, association and training a real son of the District of Columbia. Inheriting a large fortune from his father, he had all the incentives to idleness usually born of opulence; but though he lives in great elegance, and entertains with large hospitality, he has been all his life one of the hardest of workers. Standing in the foremost rank as a lawyer, he has been for years at the head of the Law school of Columbia University, Washington. In addition to a pressing law practice, three evenings of the week, for many years, have found him in his place as the instructor of the intelligent, and in many cases, hard-worked young men, who with other employments by day, studied law with Judge Cox of nights. Judge Cox is a slight, delicate-looking man, whose strong features and fine head indicate a mentality more potent than any mere physical force could express. He is somewhat bald, has mild blue eyes, a Roman nose and an expression entirely benevolent. Said a friend: ‘I cannot see how a man can amount to so much and assert himself so little.’ This was the quality that brought down upon him so many anathemas during the Guiteau trial.” The Independent, Id.

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to do this. But a great authority on criminal law has defended his course in this respect, saying:

     “There can be now no question that giving Guiteau full liberty in the court-room greatly conduced not only to the promptness and early unanimity of the action of the jury, but to the universal approval with which that verdict has been met. I confess that when the prosecution opened I had much doubt whether a conviction could be secured; and I believe that the general sentiment then was that the case was on the border-line and that the jury could not be expected to agree. This feeling, however, was gradually dispelled by Guiteau’s course during the trial. Undoubtedly he showed great vanity and great ignorance, so far as the higher conditions of knowledge are concerned. But he showed abundantly that he acted in the tragic homicide perpetrated by him with a motive, which, however preposterous and villainous, was nevertheless as sane as are the motives of other criminals who take human life to gratify personal or political revenge and with a full knowledge of the unlawfulness of his act. He proved on the trial that he was as sane as are the greater body of ruffians by whom life is taken; and he proved also that if the defense of insanity was good in his case, there are few cases of atrocious crimes in which it could not be sustained. Had he been removed from the court-room or gagged, as was proposed, this condition would not have existed. Even if convicted there would have been many who would have felt that the case was still one of doubt, and there would have been few who would have regarded the conviction and execution with entire approval.”⁹

     ⁹ Dr. Francis Wharton, in 10 Fed. Rep.