Central Law Journal.

ST. LOUIS, MO., JULY 3, 1903.

LYNCH LAW IN AMERICA AND THE EFFORTS MADE TO STAMP IT OUT.

Of all the things that are termed Americanisms-products of American ingenuity and invention there is only one which raises the blush of shame and lies heavily like a burden upon the hearts of true American citizens,the responsibility for the term, "lynch law." For many years back much discussion appeared in the periodicals of the day, over the origin of this term. The attempt was made by well-meaning citizens of this country, who did not relish the idea of being "damned to everlasting fame" as the nation of all others to give birth to such a monstrosity of civilization, suggesting, as it does, some passing flirtation with the Age of the Inquisition or some clandestine, unholy alliance with savage barbarism, attempted to saddle the responsibility of its origin upon England. The latter flung it back in our face, and for many years every dictionary in England characterized the term as an Americanism. Finally the smoke of the conflict cleared with America forced to acknowledge defeat, compelled to admit before the judgment bar of the civilized world, that from her soil sprung this untimely growth, this relic of savagery that would make even a savage hang his head, this institution which constrains civilized men, in a passion of wild, demoniacal fury, to turn back the progress of the ages, and uncover their beastly natures, while at the same time they uncover the body of some defenseless victim to the flames, or dismember it part from part, to the accompaniment of their own unseemly ribaldry and jesting.

The Century Dictionary defines "lynch law" as originating out of the manner of administering law during the time of the Revolution, by one Charles Lynch. It is only just to this gentleman to say that his methods were praiseworthy when put in comparison to the methods now practiced under his name. He was a Quaker and therefore never imposed the death penalty. His methods gave the culprit at least the semblance of a trial. It was during the trying times of the

Revolution, when, with the courts practically suspended, the citizens organized themselves for their own protection, much after the manner of the citizens of San Francisco in the formation of what were known as Vigilance Committees. Culprits were brought before Judge Lynch, as he was styled, who, after a short trial, found the prisoner either guilty or not guilty. If the former, the prisoner received a certain number of stripes commensurate with his offense. After the Revolution, Judge Lynch and his compatriots, being threatened with suits by persons alleged to have been damaged by this summary execution of the law, were, by special statute of the Virginia legislature, "indemnified and exonerated from all prosecutions, suits, or damages on account thereof," the reason being, in the words of the statute, "that although the measures used were not strictly warranted by law, they were justified by the imminence of danger." This is the only justification of "lynch law" of which we have any knowledge.

Only a few days ago, in Delaware and Illinois, the former at the city of Wilmington and the latter in the city of Belleville, both places north of the Mason and Dixon line, infuriated mobs broke open the prison doors and dragged forth, to torture and to death, certain prisoners against whom the public mind had been inflamed, but who were at the time in the hands of the law awaiting trial. The details in both cases are too disgusting to repeat, but the astonishing feature of both occurrences was the approval, consent and even participation of the best and most virtuous people of the different localities. We call attention to these two incidents, not because they are in any manner exceptional in the measures used, but because in more than one respect they show the expanding jurisdiction of this hellish method of executing the law, this anachronous arbitrament which recognizes no limitation but the gratification of its thirst for revenge and its lust for blood. No longer can the north or the south, the east or the west point the finger at the other and say "thou art the man." Every section is equally involved; every state stands fully condemned. From a recent report of the attorney-general to congress, it appears that in the last dozen years the number of homicides in the United States has suddenly risen from

4,000 to 10,500 per annum, and that for the vast slaughter represented by the last figure, in round numbers, 100 were convicted of murder by the courts and 240 were executed by lynch law. In some states this proportion is less; in others it stands three lynchings to one conviction for homicide and rape.

Various reasons have been assigned for the remarkably rapid growth of this terrible blight upon our civilization. The one most often assigned by laymen is the inefficiency of the courts. In the Deleware incident, for instance, a preacher called upon the judges of the circuit court to try the alleged criminal at once. The latter, refusing to commit such a breach of the law, were denounced from the pulpit the succeeding Sunday, where, in a place dedicated to the God of mercy and of peace, the preacher urged the citizens of Wilmington to take the law into their own hands. We find, also, judicial recognition of the reasons thus assigned for the spread of lynch law, in the dissenting opinion of Judge Clark in the case of State v. Rhyne (N. Car.), 33 S. E. Rep. 128, where the learned judge opposes the reversal of a verdict of guilty in a case of homicide on techninal grounds because such action on the part of the court would only tend to increase the practice of lynching. Judge Clark says: "Lynch law, evil as it is, is a protest of society against the utter inefficiency of the courts, as above shown, to protect the public against murder. It is an evidence that society, under the first of its laws, the right of self-preservation, is endeavoring to protect itself when the costly machinery of courts has failed in the object of its creation, so far as homicide is concerned." Such language on the part of a member of an appellate tribunal, besides not being true, is especially unfortunate and inopporIt received a merited rebukę from the majority of the court, speaking through Douglas, J., who said: "I am unwilling to rest under the charge that the increase of lynching is caused by the inability of the courts to protect society from murders. Such suggestions do great harm by encouraging the very outrages they profess to denounce. I feel safe in saying that the courts of this state are fully competent to protect our citizens, and able to do so without denying to any one equal protection of the law. The temple of justice contains no altar of sacrifice

tune.

nor do the people of North Carolina demand a scapegoat for the sins of the ten thousand murderers throughout the country." We desire heartily to commend this language of Judge Douglas and to indignantly deny in behalf of the judiciary and the legal profession of this country any responsibility for lynch law and its rapid growth. The truth of the business is that the participants in such disgraceful scenes, with the blood of a fellowcreature resting upon their consciences, are quite ready for the vindication which this plea of judicial inefficiency offers them, and virtuously strive to heap honor to themselves (enough to cover their sin) by the claim that where the judiciary was, or was expected to be, a failure they stood in the breach and enforced the law.

The great fundamental cause of the practice of lynching is the susceptibility of the people to be aroused into a passionate frenzy by the detailed account of some atrocious crime, especially where committed by an inferior or one of a class generally ostracized, upon one who is held in high esteem by the people or upon an innocent member of his household. Coupled with this, no doubt, is a lack of any wholesome respect and fear for the court or its officers. Is not the judge and the sheriff mere creatures of our pleasure and our votes? Are they not one of us, depending upon our political support for their very existence? Thus the mob reasons and dismisses its fears of consequences. To our mind, if these are the causes of lynch law, the remedy is easily suggested. The whole mob, every man that participates in a lynching must feel the hard end of the law. To insure this the trial must take place in a county far removed from the place where the lynching was committed and before a special judge, unknown to the participants, to be appointed or designated by the governor. This would give the adherents of lynch law a taste of the summary proceedings which they demand for other criminals. The governor should have power to appoint special counsel for the state and be authorized to use the entire militia of the commonwealth to protect its officers and effect the decrees of its courts. The conviction and execution of a mob of leading citizens of some county who have in the manner we have been speaking, violated the laws of the state, would do more to prevent lynching than all the moralizing and regrets of great states

men could do in a thousand years. To some extent, at least, this method prevails in England. About a half-century ago in the city of Edinburg, a mob broke into a prison where one, Porteous, was confined, and hanged him. Porteous had been convicted but his sentence respited by what was regarded as an arbitrary exercise of the royal prerogative. Yet the deed was murder and the authorities so considered it. Prompt it. Prompt investigation was made with the result that all the principal actors fled to avoid certain punishment. The city was also compelled to pay a large indemnity to the victim's widow, and narrowly escaped having its walls dismantled and its guards disbanded. No outbreak of a similar nature has ever since taken place in Great Britain. It should, it can and it must be so in this country. More power in the governor, power enough to punish a whole county that has the presumption to rise up and defy the laws of the state, the arrest of all the members of the mob by state officers or the militia if necessary, their trial in another county before a special judge appointed by the governor, if he thought necessary, and the prosecution in the hands of the attorneygeneral or special counsel, and the disgraceful blot of lynch law will be thoroughly wiped

out.

That the states are earnestly working along this line is evidenced by the passage of laws in some states making the county in which a lynching occurs liable for a penalty to the representatives of the deceased victim. This is no new thing. It is said by Blackstone, that it was an ancient usage among the Goths in Sweden and Denmark to subject the vill or hundred in which a murder was perpetrated to a heavy amercement, if the murderer was not produced. This custom was introduced into England, according Bracton, by King Canute, and afterwards continued by William the Conqueror. Ohio has a law of this character which subjects the county in which a lynching occurs to a penalty of $5,000. This law has been tested, tried and found not wanting. Board of Commissioners v. Church (Ohio 1900), 57 N. E. Rep. 50, 50 Cent. L. J. 462. In this case deceased was lynched in Urbana in 1894, and his administrator brought suit under the statute just referred to and recovered $5000. The court on appeal said: "Every person who is accused of crime is guaranteed a fair

trial, and he cannot be deprived of life or liberty without due process of law. The faith of the body politic is pledged to make good the constitutional guaranties to the individual. To the counties and municipal corporations are delegated in large measure, the duties of local administration. Within their jurisdiction they stand in the place of the state, in enforcing the laws. If a large number of the people of any county become imbued with the lynching spirit, or negligent and indifferent to the due and orderly enforcement of the laws, so that lawless men may act with impunity, then there is no course for the state to take, other than to intervene and directly protect the individual as well as to enforce upon the community the observance of good order. In this respect the power of the legislative branch is plenary. It may prescribe such laws, sanctioned by fines, penalties, forfeitures or damages as will enforce the observance of the peace and dignity of the states, and compensate the injured party; for, unfortunately, the public conscience is oftentimes more easily quickened in this way than by teaching and persuasion."

Other methods tending to remedy this terrible evil will suggest themselves as we begin to put in force those already offered. Sheriffs, for instance, can be held liable under the common law in damages to representatives of the outraged victims whenever they or their deputies co-operate with the mob or fail to resist when amply able to do so. Asher v. Cabell, 50 Fed. Rep. 818; State v. Wade (Md. 1898), 47 Cent. L. J. 368. So, also, all the members of a mob are equally guilty of murder and should be vigorously prosecuted. State v. Shelledy, 8 Iowa, 477. This case, by the way, is the only one which has come to our attention where a body of lynchers were convicted and sentenced for murder in their own county. Again, the bar should purge itself of any of its members who participate in any way in a lynching, either by counseling, aiding or abetting the same. Such a member of the profession should be promptly disbarred without waiting for his trial and conviction. This is a summary proceeding but has been held to be perfectly justifiable. (Ex parte Wall, 107 U. S. 265), the court saying, speaking of the crime of lynching: "It is not a mere crime against the law; it is much more than that. It is the prostration