Evening star., 1901-10-31
From the Green Bag.

of bells. and the third time that a funeral
| train has impressively borne from WASH
ington to the west a murdered President,
this is only the first time that the murder
has been done in the midst of the peculiar
ly democratic ceremonial wherein the chief
magistrate by taking the hand OF any conner
illustrates the equality OF all men before
the American law. and the first time that
the assassin has been a mere enemy OF gov
ernment.
Yet although in the midst Of anger, how
ever just, it is impossible to come to a
safe decision, 1t is inevitable that there
should be discussion-particularly among
members Of the bar. Fortunately, at this
very time of excitement the essential feat
| ure 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 private citizen, in that the killing Of
President disturbs the pursuits of the en-
tire community, takes the government from
the hands of the person chosen by the
people, and unsettles the nations policy,
both foreign and domestic.
In short, the killing of a President is a
breacn 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-states that classify homicide I'm
| divers ways, and that provide as the maxi
mum punishment in California death by
hanging, and in New York death by cleo
tricfty, and In Maine perpetual imprison-
ment; but the crime should be punished
under federal statutes and in federal courts
and with consequent uniformity Of penalty.
Crime of Treason.
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 COM
fort The Constitution further provides
as will be well to bear in mind further
along in this discussion that mo 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 trainers of the Constitution
kept in mind the history of England, and
realized that, as Madison says in The Fed
eralist, "Newfangled and artificial treasons
have been the great engines by which vio-
lent factions, and the natural offspring OF
free government. have usually wreaked
their alternate malignity on each other"
Even If it were desirable, il would be prac-
tically impossible today to amend the Con-
stitution by creating new kinds of treason.
Without amending the Constitution there
is possible and desirable remedy, namely.
statutory provision similar to the one
now Furnishing 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
Furnishing any person who prevents, or at
| tempts to prevent, the President, Vice
| President, any member of the cabinet, any
| justice of the Supreme Court or of the cir
| cult 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 hold
ing such office, of from dscharging 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 con-
stitutional powers of Congress and placing
the protection of high federal officials in
the hands of the federal courts.
Anarchist Immigrants.
There remains the most dangerous ques-
ton 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 coun-
selling assassination? The nation certainly
is under no obligation to admit an immi-
grant holding anarchistic opinions; and, al
though ii is difficult to define such opinons
with accuracy, 1t 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 un-
der no obligation to transmit by public ma
chinery publications sUbversive Of its own
existence, or even publications of an i'm
neral nature; and hence il is proper enough
to exclude anarchistic literature from the
mails.
These remedies however. are obviously In
adequate to prevent the dissemination of
anarchistic opinions. Can anything else be
done? Yes; ii is practicable TO punish with
fine or Imprisonment any one who makes
threats who counsels violence; but, as
1t is not expedient to encourage martyrdom,
it would be preferable to adopt some less
spectacular remedy. II anarchists make
distinct threats of molesting a public OFF,
cial 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 in
terfere with one of the high federal officials
heretofore enumerated. let extend the
unexciung remedy and require those who
thus counsel violence to give bonds that
will be forfeited upon the happening. with
in a given time, of any unlawful act as the
direct consequence OF their teaching
Freedom of speech.
So much for such threats and exhorta-
tions as cannot fairly be deemed peaceable.
Yet suppose. as must be supposed. that an
archists are so adroit as not to make
threats and not to counsel violence direct
ly-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 Consti-
tuition 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 govern
ment for a redress of grievances" AS JEFF
ferson said in his first inaugural: IF there
be any among us who would wish to dis
solve this Union, or to change its repub-
lican 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 mat
tiers 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 means toward
the end that the private citizen may en-
JOY what the Declaration OF Independence
calls certain inalienable rights'-"1ife, lib
erty, and the pursuit OF happiness" We
cannot silence the anarchist without en-
dangering the freedom Of patriotic citizens.
lor.a fffer fro, doh