Source: American Law Review
Source type: journal
Document type: editorial
Document title: “Legislation Wanted for Anarchists”
Date of publication: September-October 1901
Volume number: 35
Issue number: 5
|“Legislation Wanted for Anarchists.” American Law Review Sept.-Oct. 1901 v35n5: pp. 744-47.|
|anarchism (personal response); anarchism (dealing with); anarchism (laws against); anarchism (legal penalties); Leon Czolgosz (legal defense).|
|Leon Czolgosz; Edward K. Emery; Loran L. Lewis; William McKinley; Adelbert Moot; Johann Most; Robert C. Titus.|
| The editorial below includes the following footnote. Click on the asterisk
preceding the footnote to navigate to the location in the text.
* Const. U. S., Amendm. VIII. [p746]
Legislation Wanted for Anarchists
The assassination of the President of the United
States by a hair-brained anarchist has led to a general demand throughout our
country, and among members of all parties, for the enactment by Congress of
a more stringent law dealing with anarchists. We say among all parties, because
members of the so-called “States’ rights party” are as much in favor of it as
are the members of the party in power. This may be inferred not only from the
editorial expressions of the newspapers of that party, but from such straws,
showing the drift of the wind, as a resolution passed by the Jefferson Club,
of St. Louis, and another resolution passed by the two houses of the legislature
of Texas, demanding a constitutional amendment placing such acts in the category
of treason. The Federal government has the undoubted power, under the Constitution,
to pass and administer suitable and wholesome laws for the protection, not only
of the President, but of all the agencies of the Federal government, and is
not in the slightest degree dependent upon the agencies of the State governments
for such protection, unless it chooses to remain in such a state of dependence.
Not that those agencies cannot, in most cases, be depended upon to do their
duty, but that their laws may not be so framed as to mete out the punishment
for such an appalling public crime as its atrocity and its effect upon the public
weal demand. In this case the incongruous spectacle is presented of the murder
of the President of the United States, being punished alone under the statute
law of the State of New York, within which State the crime happened to take
place, just as the murder of a common person would be punished. A State jury
has the power to acquit, and a State governor to pardon, the assassin. There
is no doubt whatever that, in this instance, the miscreant will receive ample
justice according to the law of New York; but if the President had lived, it
would not have been a measure of justice proportioned to the crime. Nothing
short of death can adequately atone for such a crime, and this wholly without
reference to  the question whether the
crime is consummated in an assassination, or in part consummated in a dangerous
wounding, or whether there has been no more than a bare attempt clearly made
out. The attempt and the deed should stand upon the same footing, and the punishment
of either should be death in some disgraceful form, and nothing less than death.
Congress will enact such a law in December. It will not be enacted under the
impulse of the natural public hysteria which followed the news of the crime
and the subsequent death of the President; but it will be enacted by lawyers
and statesmen, in the calmness of their deliberations, and in cool weather.
The proposition that there should be a constitutional amendment declaring attempts on the life of the President to be treason, is not well conceived. No such amendment is necessary. It would require three-fourths of the States to ratify it, and a computation, quickly made with a pencil, would show that the opposition of the small States might result in its being defeated by no more than two or three millions out of the seventy-five million people of the United States. No such amendment is necessary, for the reason that the punishment of the crime is not rendered the more certain by changing the name of the crime; and such an amendment would have no other effect.
A more difficult question will be, what measures should be taken to repress the growth of anarchism—to repress anarchistic meetings, anarchistic speeches and the publication of anarchistic literature. The danger which lurks in this legislation is the danger of infringing the freedom of speech, the freedom of the press, the freedom of public meeting, and the right freely to communicate and disseminate ideas on political subjects. But we have among us a murder society like the thugs of India, which denies the right of all government to exist and all heads of government to live. Shall they receive the protection of any government? Shall we tolerate such utterances as that which appeared about the same time as the assassination of the President, in “Die Freiheit,” the anarchist organ edited and published in New York City by Herr Most. His proposition was that all government is murder, robbery and oppression, and that the chiefs of every kind of government ought to be killed “through blood and iron, and poison and dynamite.” Do the rights  of a free press require the government to tolerate the publication of such opinions? Men who league themselves together for the purpose of destroying all government by such means become hostes humani generis. They are like gangs of pirates or nests of vipers; and it may well be worth discussion whether the safety of honest people who found and carry on good government, which government protects the lives and property of these very miscreants,—does not require more drastic measures than either ourselves or our ancestors have applied to the suppression of crime; whether the swift hand of administrative process, without the delay and formalities of a judicial trial, ought not to fall upon them; whether we ought not to meet anarchy with war, to fight the devil with fire, and to apply to them the doctrine that all that murder by the sword shall perish by the sword.
At least, a law ought to be enacted whereby their American citizenship can be taken away from them, but only upon fair trial and an opportunity to be heard in their defense, and whereby if, upon like trial, it shall be proved that they have advocated murder as a means of destroying or revolutionizing governments, the protection of the government shall be withdrawn from them. At all events, let us do all we can to extirpate them within the limits of the constitutional restraint that “cruel and unusual punishments shall not be inflicted.”* Banishment, at least, is not a cruel or unusual punishment within the meaning of this provision, since it has been resorted to by all civilized nations. If they are foreigners, we can send them back to their own country, without violating any obligation of international law. If they are our own citizens we can establish a penal colony for them on some of our remote possessions—for instance, Wake Island, or the Island of Attu.
The assassin is in the hands of the law,—let him suffer the dues of the law, in full measure, pressed down and running over. Give him prison fare and no more. Let him sleep on a hard plank and no better. And by all means keep away from him the silly women that will ache to bring bouquets to him.
Since the above was written, a grand jury of the County Court of Erie County, New York, Judge Emery presiding, returned a bill of in-  dictment against Czolgosz, charging him with murder in the first degree. The Bar Association of Erie County intervened, to the extent of its influence, and advised the Court to appoint two eminent lawyers, former justices of the Supreme Court of New York, Judges Lewis and Titus, to perform the disagreeable duty of defending the prisoner, to the end that he be secure in his legal rights. The Court accordingly made the appointments. Judge Lewis accepted the appointment, but with evident repugnancy and under protest. Judge Titus was out of the State, and on September 18 had not signified his intention to accept the appointment. Thereupon Hon. Adelbert Moot, president of the Bar Association, sent him a long telegram stating that the Bar Association had unanimously agreed upon him and Judge Lewis to act as counsel for Czolgosz, and that Judge Emery had appointed them in compliance with the request of the Bar Association. This telegram to Judge Titus contained the following language, with the spirit of which the profession will entirely concur:—
This was done that an insane man should not be convicted, if he be insane, and that his trial should not be degraded into a mere attempt to cheat justice, if he be sane. If you will act, Judge Lewis will act, on the understanding that the entire Bar Association shall give such advice and assistance from time to time as shall be required. Anarchy is to be denounced and the law upheld. But if the man is insane, in the words of McKinley, “Let no man hurt him.”
* * * * * * * * * * * * * * *
There has never been a better opportunity to render the law a real service than in seeing that there is a fair trial in this man’s case. And if it is to be held, the people of the world will see what it means to have experienced lawyers to defend with ability, dignity and justice. The bar urges you to discharge this disagreeable duty.
At this point of time our record ends.