In the constitution which South Carolina adopted in 1895, it was provided that “in case of any prisoner lawfully in the charge, custody or control of any officer, State, County or municipal, being seized and taken from said officer through his negligence, permission or connivance, by a mob or other unlawful assemblage of persons, and at their hands suffering bodily violence or death,” the said officer should be deemed guilty of a misdemeanor, and upon true bill found should be deposed from office pending trial, and upon conviction should forfeit his office, and, unless pardoned by the governor, should be ineligible to hold any office of trust or profit within the State. It was made the duty of the prosecuting attorney within whose circuit or county the offense might be committed to forthwith institute a prosecution against said officer, who should be tried in such county in the same circuit, other than the one in which the offense was committed, as the attorney-general might elect. The fees and mileage of all material witnesses both for the State and the defense were to be paid by the State treasurer. It was also provided that “in all cases of lynching when death ensues, the county where such lynching takes place shall, without regard to the conduct of the officers, be liable in exemplary damages of not less than $2,000 to the legal representatives of the person lynched,” and that “any county against which a judgment has been obtained for damages in any case of lynching shall have the right to recover the amount of said judgment from the parties engaged in said lynching in any court of competent jurisdiction.”[[285]]
In 1896 Ohio entered the list of States that have adopted anti-lynching laws. This Ohio act gave to lynching its first legal definition. A lynching and a mob are defined as follows: “That any collection of individuals, assembled for any unlawful purpose, intending to do damage or injury to any one or pretending to exercise correctional power over other persons by violence, and without authority of law, shall for the purpose of this act be regarded as a ‘mob,’ and any act of violence exercised by them upon the body of any person, shall constitute a ‘lynching.’” Under this act any person who is taken from the hands of the officers of justice in any county by a mob, and is assaulted by the same with whips, clubs, missiles, or in any other manner, may recover damages from the county to the amount of one thousand dollars; any person assaulted by a mob and suffering lynching at their hands may recover from the county in which the assault is made five hundred dollars, or, if the injury is serious, one thousand dollars, or, if it result in permanent disability to earn a livelihood by manual labor, five thousand dollars; and the legal representative of any person suffering death by lynching at the hands of a mob may recover from the county in which such lynching occurs the sum of five thousand dollars, provision being made for the disposition of the recovery in such instances. Any person suffering death or injury at the hands of a mob engaged in an attempt to lynch another person is to be deemed within the provisions of the act, he or his legal representatives having the same right of action thereunder as one purposely injured or killed by such mob. An order to the commissioners of a county against which such recovery may be made, to include the same with costs of action in the next succeeding tax levy of said county, forms a part of the judgment in every such case. The county, however, has a right of action to recover the amount of any judgment against it, including costs, against any of the parties composing such mob, and any person present with hostile intent at such lynching is to be deemed a member of the mob and is liable to such action. In case a mob shall carry a prisoner into another county, or shall come from another county to commit violence on a prisoner brought from such county for safe keeping, the county in which the lynching was committed may recover the amount of the judgment and costs against the county from which the mob came, unless there was contributory negligence on the part of the officials of said county in failing to protect the prisoner or disperse said mob. It is also provided that nothing in the act shall be held to relieve any person concerned in such lynching from prosecution for homicide or assault for engaging therein.[[286]]
By an act of April 25, 1898, it is further provided in the law of Ohio that whoever shall break into or attempt to break into a jail or any prison, or to attack an officer, with intent to seize a prisoner for the purpose of lynching, shall be deemed guilty of a felony, and shall be confined in the penitentiary for not more than ten years nor less than one year.[[287]]
In 1897, Tennessee, Kentucky, and Texas enacted laws directed against lynching. By the Tennessee act it was made a felony punishable by from three to twenty-one years’ imprisonment, and by full judgment of infamy and disqualification, for two or more persons to form or remain in any conspiracy or combination, under any name, or upon any pretext whatsoever, to take human life, or engage in any act reasonably calculated to cause the loss of life; or to inflict corporal punishment or injury; or to burn or otherwise destroy property or to feloniously take the same. It was likewise made a felony punishable in like manner for any person either directly or indirectly to procure or encourage any one to become or remain a member of any such unlawful conspiracy or combination; or for any person either directly or indirectly to aid, abet, or encourage any person to engage or remain in such conspiracies or combinations, or to aid or abet in the accomplishment of any purpose or end of such conspiracies or combinations. Any person guilty of any of these offenses was declared to be incompetent to sit or serve on any grand or traverse jury, and it was made the duty of the court to carefully exclude all such persons from the juries, both grand and petit. It was provided that indictments framed under the act were not to be held insufficient by reason of the general nature of the charges preferred, or for embracing more than one of said offenses in the same indictment, and the act was to “take effect from and after its passage, the public welfare demanding it.”[[288]]
By the Kentucky “Act to prevent lynching, &c.,” which was amended by the omission of three sections and thus re-enacted in 1902, it was provided that if any two or more persons should confederate or band themselves together for the purpose of intimidating, alarming, disturbing, or injuring any persons, or to rescue any person or persons charged with a public offense from any officer with the view of inflicting any kind of punishment on them, or with the view of preventing their lawful prosecution for any such offense or to do any felonious act, they, or either of them, should be deemed guilty of felony, and upon conviction should be confined in the penitentiary not less than one nor more than five years. If any two or more persons should confederate or band together and go forth for the purpose of molesting, injuring, or destroying any property, real or personal, of another person, persons or corporation, whether the same be injured, molested or damaged or not, they should be guilty of a felony punishable by a like penalty; and if any injury should result to the person or property of any person or persons, by reason of any such unlawful acts, any one participating in, or aiding or abetting, such unlawful acts should be guilty of a felony, and upon conviction should be confined in the State penitentiary not less than one nor more than fifteen years, unless death should result, in which case the penalty for such offense should be that prescribed by law for murder. It was made no mitigation of the offense for any one upon his trial, that he may have acted through heat or passion, or that he may have acted without malice, and the judge trying the case should so instruct the jury in writing. It was provided, also, that any officer or person having the custody of a prisoner should have the power and it should be his duty to summon to his aid as many of the able-bodied male citizens of his county as might be necessary to protect such prisoner, any person who should fail or refuse to respond to such summons being liable to a fine of not less than one hundred dollars nor more than five hundred dollars; and when any officer in charge of a jail had reasonable grounds to believe that said jail would be attacked by a mob or persons confederated or banded together for the purpose of inflicting violence upon any inmate of said jail, he was authorized, in his discretion, to arm said threatened inmates, with a view to their own protection. Authority was given the governor to offer a reward for the apprehension and conviction of any offender of this law in any sum not exceeding five hundred dollars, and also to employ detectives, in his discretion, not exceeding two at any one time, provided the cost thereof should not exceed three thousand dollars in any one year. The judge of the county court of any county in which this law should be violated was also given power to offer a reward not exceeding two hundred dollars, or supplement the governor’s reward, for the arrest and conviction of any person violating the act. It was also provided that any person who should send, circulate, exhibit or put up any threatening notice or letter, should upon conviction thereof be fined not less than one hundred dollars nor more than five hundred dollars, and be imprisoned in the county jail not less than three nor more than twelve months. In any prosecution under the act it should be no exemption for a witness that his testimony might incriminate himself; but no such testimony should be used against him in any prosecution except for perjury, and he should be discharged from all liability for any violation of the act so necessarily disclosed in his testimony.[[289]]
By the Texas law, which was enacted at a special session of the legislature, it was provided that whenever two or more persons should combine together for the purpose of mob violence, and in pursuance of said combination should “unlawfully and wilfully take the life of any reasonable creature in being by such violence,” such person should be deemed guilty of murder by mob violence, and upon conviction thereof should be punished by death or confinement in the penitentiary for life, or according to the degree of murder, to be found by the jury. It was made the duty of the district judges to give this law specially in charge to the grand jury at the beginning of each term of court, and prosecution for murder under the act might be commenced and carried on in any county of the judicial district in which the offense should be committed, except the county of the offense. It was also provided that if any sheriff, deputy sheriff, constable, chief of police, city marshal or other officer in the State should permit or suffer any person in his custody charged with crime to be killed by one or more persons, or should permit or suffer any such person to be taken from his custody and killed by one or more persons, he should be deemed guilty of official misconduct, and be removed from office, proceedings for removal to be conducted by the attorney-general in accordance with the provisions of the act, such cases taking precedence in all courts of all other cases. Pending trial such officer should be temporarily suspended from his office and should judgment be rendered against him he should not thereafter be elected or appointed to that office. The final section of the act reads as follows: “The fact that there is no adequate law in this State for the suppression of mob violence, creates an emergency and an imperative public necessity that the constitutional rule requiring all bills to be read on three several days be suspended, and that this act take effect and be in force from and after its passage, and it is so enacted.”[[290]]
In 1899 an act dealing with the subject of lynching and violence by mobs was passed by the legislature of Indiana. In this act a mob and a lynching are defined as follows: “Any collection of individuals assembled for any unlawful purpose intending to injure any person by violence and without authority of law shall, for the purpose of this act, be regarded as a ‘mob,’ and any act of violence exercised by such mob upon the body of any person shall constitute the crime of ‘lynching,’ when such act or acts of violence result in death.” It is provided that any person who actively participates in or actively aids or abets such lynching, upon conviction thereof, shall suffer death or be imprisoned during life, in the discretion of the jury, and any person who, being a member of any such mob and present at any such lynching, shall not actively participate in the lynching, shall be guilty of abetting such lynching, and upon conviction thereof shall be imprisoned not less than two nor more than twenty-one years. Every person who shall, after the commission of the crime of lynching, harbor, conceal or assist any member of such mob, with the intent that he shall escape detention, arrest, capture, or punishment, shall be deemed an accessory after the fact, and upon conviction thereof shall be imprisoned not more than twenty-one years nor less than two years. Provision is made for the manner in which prosecutions shall be instituted under the act, and in case any persons shall come together in any county for the purpose of proceeding to another county, with the view of lynching any person, or in case any person or persons shall purchase or procure any rope, weapon, or other instrument in one county for the purpose of being used in lynching any person in another county, such crime of lynching, if committed, shall constitute a continuous offense from the time of its original inception, and the courts of any county in which such overt act has been committed shall have jurisdiction over the person of any member of the mob committing such overt act. Power is given the sheriff to call bystanders and others to his assistance and arm them for the protection of a prisoner, it being a misdemeanor for such persons to refuse assistance, punishable by a fine in any sum not less than one hundred dollars nor more than one thousand dollars, and imprisonment in the county jail for a period not exceeding six months. If at any time a sheriff has reason to believe that a prisoner in his custody is in danger of being lynched, and that he, with his deputies and assistants, is not able to protect the life of such prisoner, it shall be his duty at once to notify the governor of such facts; whereupon, the governor shall be authorized to furnish such militia as shall be necessary to preserve order and defend such prisoner.[[291]]
In 1901 the Indiana act received the following important amendment: “If any person shall be taken from the hands of a sheriff or his deputy having such person in custody, and shall be lynched, it shall be conclusive evidence of failure on the part of such sheriff to do his duty, and his office shall thereby and thereat immediately be vacated, and the coroner shall immediately succeed to and perform the duties of sheriff until the successor of such sheriff shall have been duly appointed, pursuant to existing law providing for the filling vacancies in such office, and such sheriff shall not thereafter be eligible to either election or reappointment to the office of sheriff: Provided, however, That such former sheriff may, within ten days after such lynching occurs, file with the governor his petition for reinstatement to the office of sheriff, and shall give ten days’ notice of the filing of such petition to the prosecuting attorney of the county in which such lynching occurred and also to the attorney general. If the governor, upon hearing the evidence and argument, if any, presented, shall find that such sheriff has done all in his power to protect the life of such prisoner and performed the duties required of him by existing laws respecting the protection of prisoners, then such governor may reinstate such sheriff in office....”[[292]]
In 1899 the legislature of Michigan enacted a law against lynching modelled on the Ohio act of 1896, but in 1903 this law was repealed.[[293]]
In the constitution which was adopted by Alabama in 1901 this provision was made in regard to the responsibility of sheriffs: “Whenever any prisoner is taken from jail or from the custody of the sheriff or his deputy, and put to death, or suffers grievous bodily harm, owing to the neglect, connivance, cowardice or other grave fault of the sheriff, such sheriff may be impeached under Section 174 of this Constitution. If the sheriff be impeached and thereupon convicted, he shall not be eligible to hold any office in this State during the time for which he had been elected to serve as sheriff.”[[294]]