Riot Law. the law's delay and the uncertainty of punishment by the courts. In my judgment, for the crime of rape, any one, white or black, of high station or low station, would be lynched in the South, if there were absolute certainty that the prisoner would be tried, convicted and executed on the next day. In my judgment, the main reason for this, which, strange to say, so far as I know, has never been mentioned in the public prints, is the fact that every one re volts at the idea of placing on the witness stand a refined woman and compelling her to go through the harrowing and disgusting details of so horrible a crime. Such a punishment of a good woman would be more cruel and inhuman than lynching one who has placed himself beyond the pale of law and for feited his right to protection under the law, human or divine. Another thing should be well understood, that our people will never be influenced by those who are continually bawling against the crimes of the lyncher and 'have no abhorrence for the hellish crime of the lynched, and no sympathy for his vic tim.
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Criminal Law of England," Vol. i, p. 59, he says: "The early criminal procedure was of two kinds : the law of infangthief, a procedure so summary as hardly to deserve the name, and the law of purga tion and ordeal (evertheil), a system which formed the first step toward our modern law. ... It should be remembered that in early times the really efficient check upon crimes of violence was the fear of pri vate vengeance, which rapidly degenerated into private war, bloody feuds and anarchy."
Still more specifically, Stephen, in the same work, says on "The Law of Summary Execution or Infangthief";
"In some pressing emergencies, the citizen was authorized to avenge his private or public wrongs. The consent of the Jewish, the Athenian and the Roman Law approved the slaughterof the nocturnal thief. Whoever surprised an adulterer in his nuptial bed might freely exercise his revenge; the most bloody and wanton outrage was excused by the provocation; nor was it before the reign of Augus tus that he was reduced to weigh the rank of the offender, or that the parent was compelled to sacrifice his daughter with her guilty paramour."
"A single step, but still a step however short, from private war and bloody feuds, is made when people are invested by law with the right of inflict ing summary punishment on wrong-doers, whose offenses injure them personally. To recognize the right of the injured husband, or owner of property, to put the adulterer or thief to death, then and there, is a nearer approach to law than to leave them to fight out their quarrel subject to a compul sory arbitration, ending in the payment of a pre scribed sum. "On this right of summary execution the Saxon laws are full, as the following extracts show : ' If a thief is seized, let him perish by death, or let his life be redeemed according to his wer,'1 say the laws of Ina, meaning apparently that the thief's fate was to be at the discretion of his captor. Another of Ina's laws says : ' He who slays a thief must declare on oath that he slew him, offending not his gild brethren.' A very obscure law of Ethelstaris begins thus: 'That no thief who may be taken handhaebbender above eleven years and above eight pence.' The rest of the law implies that in some cases the thief may be imprisoned. Another law of the same king implies that the natural and proper course as to thieves was to kill them."
Such was the bearing of Roman Law on the subject. We in America are proud to boast of a jurisprudence which has its foundations of the great English Common Law. The thought may occur that the Roman Law was well adapted to inhabitants of a warm climate, and to Roman conditions of life, but quite unsuited to American con ditions of civilization. On this subject, we are fortunate to have so eminent an authority as Sir James Stephen. Speaking of such punishment in his "History of the
These quotations show that summary exe cution of an offender at the hands of the in jured party was a part of the regular law of England, and from it follows that the lynch ing of to-day, far from being a mad outburst of passion, may be considered simply as an expression of early English justice. Xow then even in these modern days, men are upholding the rights of the lyncher. In the light of the ancient law of Rome, and of the great Common Law of England, what interpretation shall we make, liberal or strict.
With the plain declaration of the attitude of modern statesmen toward lynching, as a further aid to interpreting this Statute, we may compare the attitude of the Roman Law toward irregular punishments. Gibbon, in his great chapter on the Roman Law, speaks as follows:
