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That is the method by which the wrongs naturally flowing from individual impulse within the state have been confined to narrow limits. That analogy, difficult as it is to maintain in view of the differences between the individual who is subject to sovereignty and the nation which is itself sovereign, indicates the only method to which human experience points to avoid repeating the present experience of these years of war consistently with the independence of nations and the liberty of individuals.”
Apparent lapses in the enforcement of law are largely due to the means and methods of law enforcement, and not to popular sentiment. The enforcement of a law sometimes does fail, but the reason for it will be found in the breaking down of the enforcement machinery and not in the popularity or unpopularity of the law itself. The public is not opposed to the enforcement of laws, nor will the people refuse to observe them even if they are obnoxious to some. Public officials do not suffer in consequence of enforcing laws, provided their conduct in such enforcement is guided by motives free from taint.
I do not wish in these remarks to usurp the province of those to whom has been allotted the discussion of questions of law reform which have engaged the thought of this Association for many years and in the direction of which it has made notable achievement; but I cannot pass the subject without a few observations upon the intimate relation of those questions to the one at hand. Twelve years have gone since the present Chief Justice of the United States, then the President, trenchantly stigmatized the administration of criminal law in this country as a “disgrace to civilization," and indicted the civil side of the courts for undue delays which worked " for the benefit of the man with the largest purse." Many reforms in the administration of the law (and I speak now with particular reference to the criminal branch with which I have long been identified) have since been effected. But numerous laws have been rendered unenforceable because of technical formalism in court procedure. The invalidating of a conviction or the dismissal of an indictment merely because a word was misspelled in an indictment or in a written verdict, or a grammatical article was omitted, has been too often exemplified in our law reports. Trial judges, as a general rule, are still circumscribed too much in their possible usefulness at a trial; their functions are still confined too closely to ruling upon quibbles as to forms of questions and answers.
One of the most serious defects in the administration of criminal law which I have experienced as judge, prosecutor and even as governor, is the denial generally of the right of appeal on the part of the People from decisions of the trial court in dismissing indictments, thereby giving immunity from punishment for crime. There has been much judicial nullification of laws, and consequent apparent unenforceability of them, merely because no right was conferred upon the representatives of the People to prosecute an appeal in such cases.
The attitude of the great body of citizens in this country is to support law enforcement, and the theory that popular approval or popular lassitude sanctions the non-enforcement of a portion of the law is, in my judgment, misconceived.
THE ILLEGAL ENFORCEMENT OF CRIMINAL LAW.
LUTHER Z. ROSSER,
The tendency everywhere, in vegetable and animal life, is to revert to original primitive types. In the absence of mental and moral training, the human biped steers constantly and inevitably backward to his cave ancestor.
The average American, while easily aroused and led by passion, willingly bends to the law's behests and looks to it for justice and safety; but when misled by anarchy and demagoguery, beset by some great temptation or obsessed by some primeval passion, then the training and influence of ages of civilization disappear.
The average American community, under normalcy, is gentle, well bred, well fed, keeping step, as well as humanity is expected to do, with the law and the prophets; when, in the calm, no inexperienced onlooker could ever conceive that it could be lashed into storm.
But when the crisis comes, when swayed by prejudice and passion, when aroused by race clash and antagonism; when deceived by demagogues and shysters; when shocked by some atrocious crime; when threatened with loss of place; when gnawed with famine; when excited by class hatred and distrust; when betrayed with political or religious frenzy—the erstwhile peaceable, happy, law-abiding community becomes a besom of destruction; it is halted by no injustice, no cruelty, no brutality; it is deaf to the voice of reason, mercy and humanity.
Such is the mob—the mob major-maddened by lust, plunder, passion, hunger, hatred, personal revenge; the mob subjective, whose madness is superinduced by its own real or imaginary wrongs, by its own real or imaginary interests or gratification.
Noteworthy among the mob species is the lynching mob. It might justly be called the objective mob.
Lynching is defined by Rapalje and Lawrence as mob vengeance upon a person suspected of crime. Both Worcester and Webster define it as the infliction of punishment without legal trial by a mob or by unauthorized persons.
These definitions are, in fact, justified by experience. Ordinarily, and indeed almost universally, a crime, shocking the community by its brutality, is the occasion for the formation and operation of a band of lynchers. The usual, ordinary violations of the criminal law, and generally even brutal and shocking crimes, run their regular course in the courts of the various states without suggestion or expectation of mob violence. But at unexpected intervals some crime, by reason of its innate repulsiveness, its brutality and wantonness, disrupts the equilibrium of the community and the mob forms quickly, spontaneously, and in its restless fury, forgetful of all law and restraint, works its primitive punishment; or when the community's calm has already been disturbed by a series of crimes, or when, for any other reason, the community is already in eruption, crimes that would otherwise and at other times be left to ordinary judicial procedure become the subject of the mob's action.
Inevitably, not all those lynched are guilty. In the nature of things there is neither time nor opportunity for real truthseeking investigation. The very essence of the mob is swift action, without reflection. Its only law—the very law of its existence—is to act and then reflect, to hang first and try afterwards. Its sole purpose is to supersede and render impossible the form and substance of a judicial hearing. The mob feels no need for pleading, evidence or sentence. It has no doubt, no question. The crime has certainly been committed; it has the criminal in its power; wherefore should there be hesitation or delay? That the unfortunate might escape judicial sentence not only does not deter, but is often itself an incentive to mob action. The calm, careful deliberation of the court maddens the mob. Why should one so palpably guilty take the time of the court and, perchance, escape through its meshes ?
The only court action that lynchers respect is that variety alas ! too prevalent, which most nearly approaches their own
methods. What lawyer of large experience has not seen, in some inflamed, superheated community, the unfortunate prisoner lynched in the courthouse, although allowed all the naked, dry forms of the law ?
As the lynchers reach a judgment without aid from the law, they likewise disregard the law in fixing the punishment. Two of the subterfuges used by mobs to excuse their actions are the delay and the clemency of the courts. The mob is society in eruption, and it is too much to hope that it will reach only adequate and merciful judgments. It subconsciously seeks justification for its existence and deeds upon the theory that ordinary methods and remedies have failed and the right end can be reached only by adopting radical processes and extreme, severe remedies. Great wrongs demand extreme punishment. Its existence presupposes the wrong, and it is remedied for the most part with death. The fact that the punishment may not fit the crime does not appeal to the mob. There is neither time nor inclination to deal with such a subtle question-only a punishment swift and terrible can come from the mob. It is a monster whose maw is insatiable.
Lynching is no new demonstration of the mob spirit. From Colonel Lynch it may have, and doubtless did, take its modern appellation, but in such taking there was no infantile christening. Saul was one of the earlier and most dangerous types of lynchers; and a long line of lynchers, lay and evangelical, preceded and succeeded him. Indeed, lynching has a long and distinguished pedigree, sometimes indistinguishably commingled with the general mob family and sometimes branching off from the genus as a well recognized species with a nomenclature of its
Of the latter were the Vemic tribunals of Westphalia, which executed thieves and murderers caught in the act, without delay.or trial; and the Jedwood justice, “hang in haste and try at leisure." Lydford law is thus aptly defined:
“ I oft have heard of Lydford law,
And sit in judgment after." But no matter how it may intertwine and commingle with the records of the mob family, and no matter whether with or without distinct or specific nomenclature, the mob spirit now