Page:The Green Bag (1889–1914), Volume 17.pdf/672

 LYNCH-LAW AND LYNCHING The writer inclines strongly to the view that these cases should be prosecuted by officers selected by the chief executive of the state, by and with the advice and co operation of the office of the attorney-gen eral of the state. For the objection which 'is made to a jury of the county where the offense is charged to have been committed applies also to the local prosecuting officer. These prosecuting officers are usu ally elected by the citizens of the county, and while their duty is made quite clear and plain by the statute books, the disposition to temporize with the local conditions is very great, if not overpowering. The temp tation to trifle with these conditions ought to be removed; rendered impossible. It would seem that this last suggestion could be made immediately operative without the necessity of constitutional amendments. As a concurrent remedy for lynching, our author does not believe there is much virtue in giving damages to the lawful heirs of the victim. His reason for this view is that it has been impossible, in most cases, to enforce the provision. I cannot take Mr. Cutler's view of this matter as either just or tenable. I strongly favor the recovery of damages from the county for the sur viving representatives of the victim, be cause it is in some limited sense a pimishment to all of the tax-paying community where the lawless act was committed. And also for the following additional reasons : first, as a punishment to the state for its failure to give one of its citizens the pro tection guaranteed under our laws; and second, to make to the immediate heirs of the deceased some slight compensation for their loss. The amount of this damage should be fixed by 'law and should be at least $5,000.00. There seems to be some ground for the statement that the collection of this damage under state laws is difficult. If this is true, then Congress should take up this phase of the matter, for the recovery of damages should be made- very simple, easy, and inexpensive, the principal requi

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sites being proof of the killing, of the time and place of same, and of heirship. If Congress should see fit to enact a law giving heirs of victims damage, its collection could be made effective through the Court of Claims at Washington and out of the National Treasury, and by the general gov ernment collected from the state, which in. turn should be required to collect it from the county where the offense was committed. This salutary provision can be enforced. The failure to do so, if it has ever been tried before, was due, doubtless, to the unwilling ness of the very people who committed the crime to make any amends for it. By passing the entire matter over to the gov ernment at Washington, this objection of want of enforcement is met and answered. This provision will tend to restrain many would-be lynchers from the commission of its intending crime. In this way it will exert a wholesome and deterring influence. We all know that a fine exerts a restraining influence on the commission of crime. Why not, then, the payment of money by whole communities, as in the nature of punitive damages for illegally taking the life of a human being?1 1 Since the above article was written, the writer has had his attention called to a recent statute passed by the General Assembly of Illinois, and approved May 16, 1905, which is designed to sup press mob-violence. This statute recognizes con ditions which are emphasized in our article and provides for mild penalties for violation of the law by the mob. It permits the recovery of dam ages from the county or city in which injury is inflicted to the person or property of the victim of the mob, to an amount not exceeding five thousand dollars. And in case of the death of the victim, damages not exceeding five thousand dollars may also be recovered by the spouse, lineal heirs, or others who were dependent upon the deceased for support. It is also provided that the taking of any person from the hands of the sheriff and lynching him shall be prtma facie evi dence of failure on the part of such sheriff to do his duty, and his office shall thereupon become vacant. He may, however, be reinstated, if he petitions the governor for a hearing and prove to the satisfac tion of the governor that he did his full duty in