Page:The Green Bag (1889–1914), Volume 13.pdf/419

 382

be construed liberally or strictly? In favor of a strict construction is a long line of facts gleaned from the field of criminal juris prudence. A strict construction of this par ticular statute, means that the breaking into a prison for the purpose of seizing a pris oner is not to be regarded in the same light as breaking into a house for the purpose of seizing property. Ought we to entertain such an interpretation? Should we treat a man who breaks into a prison under the circumstances, just as we treat a burglar, who breaks into one's house at midnight for the purpose of stealing personal property? At times it has been held that the killing of a burglar, if found in one's dwelling house under these circumstances, was excusable homicide. Naturally, the distinction will arise that officers of the law are at hand to protect a prisoner, while in cases of burglary the householder himself usually protects his property, for the protection of which prece dents of many centuries justify measures of the most vigorous kind. Suppose one were to look back over that history which speaks of the centuries of toil, during which our criminal law finally de veloped into a splendid and humane code. We find that certain crimes were punish able by death at the hands of the injured party. We hardly need the melodious pages of Gibbon to assure us that under the Em pire a wife's paramour might be killed by the wronged husband. Modern statutes make no distinction between this sort of murder and murder of the usual type, and yet we have yet to learn that any wronged husband has been executed for any such crime. The circumstances of these particular cases aid further in such interpretation. On trial it developed that one of the defendants while on the streets during the day of the riot, was told that the prisoner had been re moved from the City Prison. Thus when he went into the City Prison, on the night of the riot, how could he intend to lynch a pris oner, who he knew to be absent from that

prison? Yherein is the intent to seize such a prisoner? As bearing further on the interpretation of this Statute, the facts leading up to the actual breaking are important. We find the mob assembled before the jail. While there the frequent cries of the crowd annoyed and alarmed the few officers who were on duty. Acting on this, the officers, knowing the prisoner to be safe in Cleveland, asked the crowd to appoint a committee to enter the prison and satisfy the crowd that no prisoner •was there. Accepting the invitation, a num ber of men entered and searched the build ing, of course, finding no one. Now are members of this committee liable to prose cution just as any ordinary member of a mob, who attacks a prison for the purpose of lynching an inmate? Is this entry and breaking, the same as the breaking and entry of a burglar, as a liberal construction of the Statute would imply? With these facts in view, what shall we say is to be the construing of this Statute liber ally, are we to put in the same category the man who has recourse to lynch law and the ordinary burglar? Does the public regard lynching with horror, does it become as tounded and awed, as if on the commission of some horrible crime? We think not. Far from condemning such an outburst, we find members of the Congress using such lan guage as this: "He might have told you that the same spirit that thrills the white man in North Carolina thrills the white man in Indiana, where recently white mobs murdered two negroes for murdering a white barber. He might have gone to Illinois, and found that wherever the white man looks to the blue sky the spirit of superiority and progress stirs within him. The gentleman wants to know if that is fair. Was the election conducted fairly? I tell you in the light of a sound philosophy, in the eyes of civil ization and justice, it was fairer and juster than the disgraceful regime (that of the negro) that made that revolution necessary (applause)." — H. R. Record, Jan. is, içoi. Again, in the House on the same day: "The truth should be known. Apologists some times make the statement that lynching is caused by