Source: Case and Comment
Source type: journal
Document type: editorial
Document title: “Legal Status of One Who Assaults the President”
Date of publication: September 1901
Volume number: 8
Issue number: 4
|“Legal Status of One Who Assaults the President.” Case and Comment Sept. 1901 v8n4: pp. 182-84.|
|McKinley assassination (personal response); presidential assassination (legal jurisdiction); presidential assassination (laws against); presidential assassination (legal penalties).|
|Stephen J. Field; Abraham Lincoln; John Marshall; William McKinley; Mary Surratt.|
Legal Status of One Who Assaults the President
The treacherous and murderous assault upon President
McKinley at Buffalo while the result was in doubt called forth various theories
with respect to the nature and degree of the crime and the jurisdiction to punish
it. It was obvious, of course, that, if the President recovered, the crime under
the law of the state of New York would constitute nothing of higher degree than
an assault with intent to kill, the penalty for which is imprisonment not exceeding
ten years. This would seem almost as inadequate as if there were no penalty
at all. It is not strange, therefore, that men were anxiously seeking for some
way of bringing the case into the Federal courts and under some provision by
which the punishment might be more nearly adequate to the crime.
An analogy with the Neagle Case, 135 U.S. 1, 34 L. ed. 55, may be supposed to exist. In that case, as in this, a crime was committed against the person of an officer of the United States, Mr. Justice Field. The Federal court interfered to take the case from the state court. But this was not on the ground that a Federal officer had been attacked, but on the ground that the person under arrest was himself a Federal officer and was being tried in a state court for an act done in the performance of his duty under Federal authority. The principle of that case has no application to the present.
There are provisions against conspiracies, in the Federal statutes, covering a considerable variety of cases. One is against injuring any officer of the United States on account of or while engaged in the lawful discharge of the duties of his office. If it could be shown that an attack on the President was in pursuance of a conspiracy to kill him because of his discharge of the duties of his office it would be clearly within the statute. The penalty for  such crime is by fine not exceeding $5,000 or by imprisonment, with or without hard labor, for not more than six years, or by both.
The contention has also been made that, as the President is the commander in chief of the army, the military authorities may intervene. The analogy between the present assault and that of the assassination of President Lincoln is very close, and, excepting the fact that Lincoln was killed in the time of war, the conviction of Mrs. Surratt by a military tribunal would form a precedent to be followed. But in the famous case of Re Milligan, 4 Wall. 2, 18 L. ed. 281, it was clearly decided that martial rule cannot exist where the courts are open and in the proper and unobstructed exercise of their authority. The jurisdiction of a military commission, even in time of war, to try and sentence a citizen of a loyal state who is not in the naval or military service, was denied, and he was declared entitled to trial by jury. It inevitably results that the conviction of Mrs. Surratt was without jurisdiction, and that the military authorities can have nothing to do with the present case.
The most serious proposition is that the crime against the President constitutes treason. The Constitution of the United States limits treason to those who levy war against the United States or adhere to their enemies, giving them aid and comfort. If the assault was made to satisfy some grudge or other private purpose, it would clearly be outside of such a definition of treason. But, if it were made for the purpose of aiding the Philippine insurgents, it would come within the language of Chief Justice Marshall in the case of Ex parte Bollman, 4 Cranch, 75, 2 L. ed. 554, where he says that, “if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.” It is clear from the Bollman Case and others that “war” and “enemies” within the meaning of this constitutional provision are not to be restricted to the case of such a war and such enemies as justify other nations in giving recognition to the enemies as a belligerent power. If it were proved—though there seems to be no reason to suppose this to be the fact—that the crime was committed in aid of the Filipinos, there would seem to be a case of treason under the authority of Ex parte Bollman. But if, as seems to be the case, the crime was committed in the cause of anarchy, a new question of serious importance arises. If it be the act of the prisoner alone, without any confederation with others, it would be going very far to call it a levying of war against the United States or an adherence to their enemies. But, if it were done in pursuance of a conspiracy with other anarchists and of their deliberate purpose to overthrow the government, then it is not an unreasonable, though it is a new, construction of the constitutional provisions on this subject, to hold that it does constitute levying war. It is true, as Chief Justice Marshall said in the Bollman Case, that it is “more safe, as well as more consonant with the principles of our Constitution, that the crime of treason should not be extended by construction to doubtful cases.” It is also doubtless true that the makers of the Constitution had in mind, when they used the terms “war” and “enemies,” such war and enemies as exist when marching armies confront each other. They did not have in mind a secret and diabolical organization of men who should endeavor to carry out their purpose of overthrowing a government by assassination instead of by open war. The purpose to be attained in both cases is the same. The means employed by anarchists were doubtless not within the contemplation of the makers of the Constitution, and would not have been deemed by them to be among the possibilities. But the very fact that the means employed are more horrible and diabolical than men have ever before conceived possible ought not to exempt the crime from the provisions intended to prevent it. In a very real, even if unusual, sense of the word “war,” a war exists against the government when a body of men band themselves together to overthrow it by violence, even if they act, not openly and in marshalled [sic] ranks, but by the exercise of deadly violence in obedience to orders and in pursuance of a systematic, though secret, plan of campaign. If this can be proved, it will not be unreasonable to hold the prisoner guilty of treason.
A crime against the Federal government and one against a state government, though committed by the same act, are both punishable, as shown by People v. Welch (N. Y.) 24 L. R. A. 117, so that the trial and conviction for assault with intent to kill in the state court would be no bar to a trial for treason or other offense against the Federal government. It is very clear, however, that Congress ought to make a definite provision for the punishment  of any assaults of this kind upon a President, and it would not be amiss for every state to provide against attacks upon President or governor.