Source: Green Bag
Source type: journal
Document type: article
Document title: “The Nation and the Anarchists”
Author(s): Wambaugh, Eugene
Date of publication: October 1901
Volume number: 13
Issue number: 10
|Wambaugh, Eugene. “The Nation and the Anarchists.” Green Bag Oct. 1901 v13n10: pp. 461-63.|
|presidential assassination; assassination (laws against); anarchism (dealing with); anarchism (legal penalties); freedom of speech.|
|Thomas Jefferson; James Madison.|
The Nation and the Anarchists
IT IS fortunate that Congress is not in session. To decide what
legislation should be adopted for the punishment of successful or unsuccessful
attempts upon the lives of public officials is a task of extreme delicacy, calling
for calmness and wisdom; and to decide what should be done towards punishing
or preventing the mere propagation of opinions naturally leading to such attacks
is a task of still greater importance and difficulty. For such decisions as
these the days closely following the assassination of a President are obviously
unsafe. Nor has there ever been a more inauspicious time for decision than this
very autumn of 1901. There have been other equally exciting assassinations,
it is true; but, although this is the second time that the people of the whole
United States have waited far into the night for the tolling of bells, and the
third time that a funeral train has impressively borne from Washington to the
West a murdered President, this is only the first time that the murder has been
done in the midst of the peculiarly democratic ceremonial wherein the Chief
Magistrate by taking the hand of any comer illustrates the equality of all men
before the American law, and the first time that the assassin has been a mere
enemy of government.
Yet although in the midst of anger, however just, it is impossible to come to a safe decision, it is inevitable that there should be discussion—particularly among members of the bar. Fortunately, at this very time of excitement the essential feature of the whole matter is brought clearly into view, and this is that the killing of a President differs in kind from the killing of a private citizen, in that the killing of a President disturbs the pursuits of the entire community, takes the government from the hands of the person  chosen by the people, and unsettles the nation’s policy, both foreign and domestic.
In short, the killing of a President is a breach of the peace of the whole United States. Hence this crime should not be punished, as now, exclusively in state courts and under the varying statutes of the states—statutes that classify homicide in divers ways, and that provide as the maximum punishment in California death by hanging, and in New York death by electricity, and in Maine perpetual imprisonment; but the crime should be punished under federal statutes and in federal courts and with consequent uniformity of penalty.
What should the crime be called? Not treason. The Constitution says: “Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” The Constitution further provides, as will be well to bear in mind further along in this discussion, that “No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.” This careful definition of treason and of the proof necessary for conviction indicates clearly that the framers of the Constitution kept in mind the history of England, and realized that, as Madison says in The Federalist, “New-fangled and artificial treasons have been the great engines by which violent factions, the natural offspring of free government, have usually wreaked their alternate malignity on each other.” Even if it were desirable, it would be practically impossible to-day to amend the Constitution by creating new kinds of treason.
Without amending the Constitution there is a possible and desirable remedy, namely, a statutory provision similar to the one now punishing conspiracies to prevent any person from accepting any office under the United States or from discharging the duties thereof. Let there be a new statute punishing any person who prevents, or attempts to prevent, the President, Vice-President, any member of the Cabinet, any Justice of the Supreme Court or of the Circuit Court or of the District Court, or any member of either House of Congress, or any person elected or appointed to any one of these offices, from accepting or holding such office, or from discharging the duties thereof. Let the punishment for causing death in such cases be identical with the punishment for murder. Let the punishment for smaller injuries and for attempts be imprisonment for a term of years or for life, in the discretion of the judge. Let the punishment of accessories be identical with that of principals. The filling out of this sketch will furnish a series of provisions coming within the constitutional powers of Congress and placing the protection of high federal officials in the hands of the federal courts.
There remains the most dangerous question of all. What shall be done with the person who has committed no overt act? May the anarchist without restriction spread doctrines directly or indirectly counseling assassination? The nation certainly is under no obligation to admit an immigrant holding anarchistic opinions; and, although it is difficult to define such opinions with accuracy, it seems advisable to exact from immigrants an oath to the effect that so long as they remain in the United States they will obey the laws of the nation and of the State and of the municipality, and will recognize the authority of all legally constituted officials. The nation is also under no obligation to transmit by public machinery publications subversive of its own existence, or even publications of an immoral nature; and hence it is proper enough to exclude anarchistic literature from the mails. These remedies, however, are obviously inadequate to prevent the dissemination of anarchistic opinions. Can anything else be done? Yes; it is practicable to punish with fine or imprisonment anyone who makes threats or who counsels violence; but, as it is not expedient to encourage martyrdom, it would be preferable to adopt some less spectacular  remedy. If anarchists make distinct threats of molesting a public official let us take the homely and ancient course of binding them over to keep the peace; and if, without making threats, they give such incendiary counsel that a person following their advice would necessarily interfere with one of the high federal officials heretofore enumerated, let us extend the unexciting remedy and require those who thus counsel violence to give bonds that will be forfeited upon the happening, within a given time, of any unlawful act as the direct consequence of their teaching. The recognizances would not be forfeited unless some act of violence took place, and hence the anarchists might continue to speak freely as long as they chose, or rather as long as they were able to furnish new bonds; but the remedy would probably be far reaching, for the man who has been put under bond to keep the peace seldom causes trouble, and bonds do not grow on every tree.
So much for such threats and exhortations as cannot fairly be deemed peaceable. Yet suppose, as must be supposed, that anarchists are so adroit as not to make threats and not to counsel violence directly—what then? Then it must be frankly admitted that according to the essential theory of our government nothing can be done. The first amendment to the Constitution says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” As Jefferson said in his first inaugural: “If there be any among us who would wish to dissolve this Union, or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated, where reason is left free to combat it.” Freedom of discussion as to political matters unquestionably has dangers; but so has repression. The present freedom of our institutions is the carefully reasoned result of generations of our predecessors, both here and abroad. The existence and the protection of public officials are not ends, but means; and they are means toward the end that the private citizen may enjoy what the Declaration of Independence calls “certain inalienable rights”—“life, liberty, and the pursuit of happiness.” We cannot silence the anarchist without endangering the freedom of patriotic citizens, departing from our high theory, forgetting of what country we are inheritors, and disregarding our mission to our successors. That thought and word and printing-press shall be free is so clearly of the essence of our system, that, if anarchists shall ever provoke us in sudden heat to exchange freedom for repression, then they will indeed have wrought a revolution, and will have destroyed—as in no other way can they destroy—the present government of the United States.