REMEDIES
In the consideration of remedies for lynching it is to the type of
lynch-law procedure which prevails in well settled communities that
attention is to be directed. The type of lynch-law procedure which is
characteristic of a frontier society naturally ceases to exist with the
disappearance of that unorganized form of society. The changed social
conditions incident to an increasing density of the population in a
frontier region, and the establishment of a regular and adequate
judiciary, remove every cause for the existence of the frontier type of
lynch-law. The rapid colonization of the western section of the United
States has thus made that phase of the lynching question no longer a
serious matter. But how to put an end to the practice of lynching in
older communities possessing well established civil regulations is a
problem for which the people of the United States have not yet found a
satisfactory solution.
As has been pointed out in the preceding chapter, there has been a
strong popular sentiment in the United States, even down to the present
day, excusing and apologizing for lynch-law procedure. On the other
hand, however, there has not been wanting at the same time a spirit of
denunciation and disapprobation[273]; although it was not until the
early nineties, when public attention was directed to the subject by
reason of the occurrence of a number of flagrant cases of lynching, that
determined efforts were put forth to check the practice. Previous to
that time such discussion as there was of the subject brought no
effective restraint to bear on the continuance of the practice, either
because of the intensely partizan character of the discussion as between
the North and the South, or because, while the practice in general was
denounced, particular instances of lynching were excused.[274] The
newspapers and magazines took comparatively little notice of lynchings
until after the year 1890. The newspapers printed accounts of such
occurrences, but the editorial protests were few, and the magazine
literature is almost barren on the subject.
On March 14, 1891, the eleven Italians who were accused of complicity in
the murder of the chief of police of New Orleans were summarily put to
death by a mob. On May 30, 1891, Tump Hampton, colored, was burned at
the stake in the parish of St. Tammany, Louisiana. On January 31, 1893,
a negro by the name of Henry Smith was publicly burned at the stake with
extreme torture at Paris, Texas.[275] Excursion trains were run for the
occasion and there were many women and children in the throng which
watched the sufferings of the victim. These and other instances of a
similar character, together with the increased number of lynchings in
the years 1891, 1892, 1893 (See charts I and IV), focused the attention
of the world upon the American practice of lynching. Italy demanded from
the United States an indemnity for the lynching of the Italians at New
Orleans. Foreign newspapers and periodicals united in heaping abusive
censure upon the United States. Repeated and insistent demands were
made, in America as well as in Europe, that lynchers be brought to
justice and be punished as other murderers are punished.
An effort was also made at this time to so organize foreign public
opinion that it would be directly effective in putting an end to the
practice of lynching. Miss Ida B. Wells, colored, who was editor of the
Free Speech published at Memphis, Tennessee, and whose paper was
suppressed because she so fiercely denounced the lynching of some
colored young men and arraigned the authorities for failing to punish
the lynchers,[276] gave a series of lectures in England in 1893–94, and
started a crusade against lynching by organizing anti-lynching
societies, enrolling as members several men of international
prominence.[277] These bodies proposed to send a committee to this
country “to collect statistics and quietly to investigate the subject of
lynchings in the United States.” The South rose _en masse_ against such
a visit and the governors of the Southern States with one or two
exceptions vehemently denounced the whole project. The statement of
Governor O’Ferrall of Virginia, himself an anti-lynching man, is typical
of the Southern sentiment. “Things have come to a pretty pass in this
country,” he said in the New York World, “when we are to have a lot of
English moralists sticking their noses into our internal affairs. It is
the quintessence of brass and impudence.”[278] The English committee
never came to this country, and Miss Wells at length recognized the
futility of further work in England and returned home. She has since
organized anti-lynching societies in various parts of the North,[279]
and more recently, as chairman of the Anti-lynching Bureau of the
National Afro-American Council, has to all appearance been working
principally among her own people, urging them to take steps to prevent
lynching.[280]
Out of all this discussion, agitation, and censure there came proposals
for various remedies for lynching. Various reasons were assigned for the
prevalence of the practice and consequently there was little agreement
in the measures which were proposed for its prevention or suppression,
but most of the proposed measures were of the nature of new or
additional laws directed specifically against lynching or mob violence.
Early in the year 1894 a number of the citizens of Louisiana petitioned
the legislature of that State to enact stringent laws against lynching,
but the legislature adjourned without fulfilling the request. A number
of governors at about this time, in messages to the State legislatures,
called attention to the subject and recommended immediate legislation.
Governor Hogg of Texas made the matter of lynching the subject of a
special message, denouncing the practice and strongly urging the
enactment of laws to prevent it. Governor O’Ferrall, in a message to the
legislature of Virginia, recommended that the county in which a lynching
occurs should be required to pay to the State treasury a sum not
exceeding ten thousand dollars for the benefit of the public school
fund. Recommendations of a similar character were subsequently made by
the governors of Maryland and Georgia. Governor Atkinson of Georgia made
the unique recommendation that if an officer in charge of a prisoner is
not required to protect his charge at the hazard of his own life, he
should be required to unshackle the prisoner, arm him, and give him an
opportunity to defend himself. On the assumption that the law’s delay or
slowness is the principal cause for lynching, the governors of a number
of States offered suggestions for a more expeditious judicial procedure.
Of the many measures proposed, however, and of the numerous
recommendations that special legislation be enacted against lynching,
comparatively few have received from the various legislatures sufficient
consideration to lead to the enactment of laws on the subject.[281]
The legislature of Georgia, in the year 1893, passed an act which
authorized “any officer, charged with the duty of preserving the peace
and executing the lawful warrants” of the State, who should have
“knowledge of any violence attempted to be perpetrated upon any
citizen ... by mob violence and without authority of law,” to summon a
posse of citizens, who must respond or be punished for a misdemeanor,
whose duty it should be to use every means in their power, even to the
extent of taking human life, to prevent such violence. It was made a
misdemeanor for said officer to fail to call together a posse in such an
emergency, and citizens who responded were authorized to carry weapons
in the performance of their duties. Any person engaged in “mobbing or
lynching any citizen ... without due process of law” should be arrested
and punished by imprisonment in the penitentiary for not less than one
nor longer than twenty years; and if death resulted from such mob
violence the person causing said death should be subject to indictment
and trial for the offense of murder.[282]
The legislature of North Carolina in the year 1893 passed an act which
provided that every person who should conspire to break or enter, or who
should engage in breaking or entering, any jail or place of confinement
of prisoners for the purpose of killing or injuring any person confined
therein would be guilty of a felony and be punishable by a fine of not
less than five hundred dollars and by imprisonment for not less than two
nor more than fifteen years. It was made the duty of the prosecuting
officer of the judicial district in which such a crime had been
committed to take immediate proceedings against the guilty parties, and
jurisdiction of the offense was conferred upon the superior court of any
county adjoining that in which the violence was committed. It was also
made a misdemeanor punishable by fine and imprisonment, one or both, at
the discretion of the court, for a witness wilfully to fail to comply
with the process served on him, or, after being sworn, to refuse to
answer questions pertinent to the matter being investigated; nor was any
person to be excused from testifying on the ground that his evidence
might tend to criminate himself, for when he should be thus examined as
a witness for the State he became altogether pardoned of any and all
participation in the crime concerning which he was required to testify.
The entire cost incurred in the prosecution was to be paid by the county
in which the crime was committed, and in case the commissioners of the
county failed to provide a sufficient guard for a jail in response to
the request of the sheriff, and the jail should be entered and a
prisoner killed, the county became responsible in damages to be
recovered by the personal representatives of the prisoner killed.[283]
In the year 1895 the General Assembly of Georgia enacted additional
legislation on the subject of lynching by passing an act which made
penal the offense of hindering, obstructing, or interfering with
sheriffs or their deputies or constables in the execution of any order
or sentence of court after trial in criminal cases, and requiring
sheriffs and constables to present to the grand jury any and all persons
so interfering. Penalties were provided for the offense and for failure
to comply with the provisions of the act, power being given the governor
to suspend a derelict sheriff or constable and to declare his office
vacant.[284]
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]
In response to a general and a special message from the governor of West
Virginia calling attention to the fact that within a year several
persons had been “brutally murdered at the hands of riotous and lawless
mobs,” the legislature of that State adopted a joint resolution on
February 3, 1903, condemning “such riotous and lawless acts” and
empowering the governor, by and with the aid and advice of the
attorney-general, to investigate and place on foot such means as in his
judgment were necessary to bring the guilty parties to justice.[295]
Prompted by the flagrant case of lynching which occurred at Pittsburg,
Kansas, on December 25, 1902,[296] the legislature of Kansas early in
1903 authorized county commissioners to offer and pay a reward in any
sum not exceeding five hundred dollars for the discovery, arrest, and
conviction of the perpetrator or perpetrators of the “murder or lynching
of a human being committed in their county,”[297] and also enacted a
statute against lynching modelled on the Indiana act of 1899 and the
amendment of 1901.[298]
From this review of the legislation that has been enacted against
lynching it appears that an application of the following remedies has
been sought: first, an increase of the power of sheriffs and of their
responsibility for the proper discharge of the duties of their office;
second, heavier penalties for sheriffs and other officers who fail to
protect from mob violence any person lawfully in their custody; third,
heavier penalties for citizens who break into jails, or attack officers,
or hinder or obstruct legal procedure; fourth, adequate provision in the
law for the discovery, prosecution, and punishment of lynchers; fifth,
fixing responsibility upon a community by making the county in which a
lynching occurs liable for damages,[299] and giving a right of recovery
to the legal representatives of the person lynched.
Direct and definite information as to the effectiveness of these
measures in particular instances is somewhat meager, but the few cases
that have arisen in the courts afford a basis for argument.[300]
On January 6, 1897, Lawrence Brown, colored, was lynched in Orangeburg
County, South Carolina, for suspected arson. Isaac Brown, administrator
of the estate of Lawrence Brown, deceased, entered suit against
Orangeburg County in the common pleas circuit court of that county for
the recovery of damages under Section 6, Article 6, of the constitution,
and the act to prevent lynching which was passed in 1896.[301] Judgment
was rendered for the defendant, the presiding judge directing the jury
to find a verdict in his favor, on the ground that the provision in the
constitution and the act of the legislature conferred upon the plaintiff
no right to recover damages against the defendant, as the person lynched
was not a prisoner. An appeal from this decision was taken to the
supreme court where the judgment of the lower court was reversed and the
case was remanded for trial. The supreme court, construing the
constitutional provision broadly and in connection with the act of the
legislature, ruled that the judge had been in error in his directions to
the jury, that the correct construction of the constitutional provision
made a county liable for damages when the person lynched was not in the
custody of the law as a prisoner. While the court declared a
consideration of the question of the power of the legislature to pass
such an act, independently of the constitutional provision, to be
unnecessary in the case in hand, an opinion in regard to the matter was
expressed in the following words: “It has been held that statutes making
a community liable for damages in cases of lynchings, and giving a right
of recovery to the legal representatives of the person lynched, are
valid, on the ground that the main purpose is to impose a penalty on the
community, which is given to the legal representatives, not because they
have been damaged, but because the legislature sees fit thus to dispose
of the penalty. Such statutes are salutary, as their effect is to render
protection to human life, and make communities law-abiding.”[302]
At the January term of the supreme court of Ohio in the year 1900 a
decision was rendered on the constitutionality of the “Act for the
Suppression of Mob Violence” which was passed April 10, 1896.[303] Two
cases were before the court. Benjamin F. Church, as the administrator of
Charles W. Mitchell, deceased, filed a petition against the board of
commissioners of Champaign County to recover five thousand dollars for
the lynching of said Mitchell, at Urbana, in said county.[304] Defendant
demurred to the petition and the demurrer was sustained by the court of
common pleas and the petition dismissed. The circuit court reversed the
judgment of the court of common pleas and the case then came before the
supreme court. In the other case, J. W. Caldwell brought action, under
the same statute, against the board of commissioners of Cuyahoga County,
to recover the sum of one thousand dollars for an injury which he
alleged that he had received at the hands of a mob in that county. A
demurrer to the petition, on the ground that the petition did not state
facts sufficient to constitute a cause for action and that said act was
unconstitutional, was sustained by the court of common pleas, and the
judgment of the court of common pleas was affirmed by the circuit court.
Both cases came up to the supreme court on petitions in error to reverse
the respective judgments of the circuit court.
In the opinion delivered on April 10, 1900, the supreme court fully
discussed and upheld the principle involved in the act, affirming the
judgment of the circuit court in Commissioners _v._ Church,
administrator of Mitchell, and reversing the judgment of the circuit
court and the judgment of the court of common pleas in Caldwell _v._
Commissioners. Church recovered from Champaign County five thousand
dollars with interest and costs for the lynching of Mitchell, and
Caldwell’s action was sustained for the recovery of one thousand dollars
for injuries received at the hands of a mob in Cuyahoga County.[305] The
court in its opinion stated specifically that the act was
constitutional; that the recovery authorized by said act was penal in
its nature, and it was within the legislative power to provide therefor;
that such legislation was not an exercise of judicial power, nor was it
a violation of the right of trial by jury[306]; that such recovery, and
the tax levy authorized and required by said act, were within the
general powers of the legislature.[307]
One case has arisen under the Indiana act as amended in 1901. On
November 20, 1902, James Dillard, a negro who had committed the crime of
rape, was taken from the custody of John S. Dudley, the sheriff of
Sullivan County, Indiana, and “lynched by hanging until dead.” Dudley
had been elected sheriff at the general election held in November, 1900,
and William P. Maxwell had been elected coroner of Sullivan County. At
the general election held in November, 1902, each had been elected as
his own successor. On the day following the lynching of Dillard,
Governor Durbin notified Maxwell that the office of sheriff of Sullivan
County was vacant, and that he, as coroner, under the law succeeded to
the duties of the office. Maxwell thereupon demanded of Dudley the
possession of the office. This Dudley refused to give, and within ten
days after the lynching occurred, as provided for in the statute, filed
with the governor a petition for reinstatement in the office. After
hearing the petition and the evidence in support of it, Governor Durbin
denied the petition and refused to reinstate him. Governor Durbin then
notified the board of commissioners of Sullivan County of the vacancy in
the office of sheriff and suggested that the board appoint a successor
to Dudley. The board of commissioners took no action, however, and
Maxwell brought suit under a _quo warranto_ statute, to oust Dudley from
the office. In the circuit court of Sullivan County a judgment for the
defendant was rendered, and on an appeal to the supreme court of Indiana
the judgment of the circuit court was affirmed. The issues in the case
were purely questions of law, it being held that Maxwell did not have
ground for action under the _quo warranto_ statute, and the supreme
court expressed no opinion on the constitutionality of the amendatory
act of 1901.[308]
Thus, the outcome of this case was, in effect, to nullify the operation
of the statute which removes a sheriff from office when he allows a
prisoner to be taken from his custody and lynched. The fact that Dudley
continued to exercise the duties of his office after the lynching
occurred, and successfully refused to vacate the office in response to
the demands of the coroner, indicates that public sentiment in the
community did not support the execution of the provisions of the law.
Newspaper reports of the case intimate, however, that politics entered
into the question to some extent.
Perhaps the present situation with reference to remedial legislation on
the subject of lynching can be summed up in these few words:
Comparatively few States have enacted laws defining and punishing
lynching, or have enacted any statutes the specific purpose of which is
to prevent lynching. Where such statutes exist very few attempts have
been made to enforce them, and the validity of some is still in doubt.
From the supreme court decisions in South Carolina and Ohio it would
seem that the courts are likely to uphold statutes giving recovery of
damages from counties in cases of lynching. The constitutionality of
statutes fixing upon sheriffs the penalty of removal from office for
failure to protect prisoners is open to considerable doubt, however, and
no such measure has yet been enforced. In both South Carolina and
Alabama provision has been made in the body of the constitution for the
removal of a sheriff from office under such circumstances, but neglect,
connivance, or other grave fault must be proved against the sheriff.
As to the effect that this remedial legislation has had on the practice
of lynching, opinions may differ, but it is difficult to point out in
what way these laws have brought about a decrease in the number of
lynchings.[309] It is true that not nearly so many lynchings occurred in
the years 1901, 1902, 1903, as occurred in the years 1891, 1892, 1893,
but it is also true that a marked decline in the number of lynchings per
year began several years before the greater number of the anti-lynching
laws were enacted. It is likewise true that the number of lynchings per
year, in States other than those possessing anti-lynching statutes has
declined in recent years. The truth would seem to be, therefore, if it
be assumed that the number of crimes or offenses which occasion
lynchings has been fairly uniform from year to year, that the same
causes which led to the enactment of the laws also brought about the
decline in the number of lynchings, namely, public discussion and
condemnation of the practice of lynching, a stronger public sentiment
against it, a deeper realization of the seriousness of the lynching
problem in the United States.
That the measures adopted in South Carolina for the prevention of
lynching, even though upheld and strongly indorsed by the supreme court,
have not been altogether effective becomes apparent from a special
message sent to the General Assembly of South Carolina, on January 20,
1904. Governor Heyward wrote as follows: “In my annual message to your
honorable body reference was made to lawlessness in our State, the
frequent occurrence of lynchings being dealt with particularly. You, the
lawmakers, had not been assembled here a week when another evidence of
this lawless spirit is given in the lynching at Reevesville. The
Governor is popularly credited with the power to prevent or punish these
outrages against the State. In reality he is practically powerless. When
the crime has been committed his hands are practically tied. The meager
rewards he has been empowered to offer out of his contingent fund have
proved ineffectual, and this is as far as he is permitted to go. In the
meantime the spirit of lawlessness is unchecked.
“Any band of men may feel secure in taking the life of a fellow-being on
almost any pretext. This deplorable condition ought to be remedied. To
compel the proper respect for the majesty of the law I recommend the
enactment of special legislation in reference to lynching, that the
great responsibility of officials directly charged with enforcing the
law be brought home to them, and that more effectual measures be taken
for the apprehension of persons who take the law in their own hands. In
lieu of some such legislation, I suggest that the Governor be provided
with an adequate fund for the purpose of suppressing lynching.”[310]
On March 7, 1904, Richard Dixon, a negro, was taken from the jail and
lynched at Springfield, Ohio. This occurred in Clark County which
adjoins Champaign County on the south. In at least two other instances
lynchings would have taken place in Ohio, since the decision of the
supreme court which established the validity of the law holding counties
liable in damages, had it not been for the vigilance and prompt action
of the sheriffs. The possibility of an increase in the rate of taxation
does not seem as yet to have had any restraining influence on the
actions of people in Ohio when occasion has arisen for a lynching.
It is only within the last three or four years that determined efforts
have been put forth to arrest and punish persons who have participated
in lynchings, but these efforts have not been confined to the States
which have special laws against lynching. Lynchers may be punished
through statutory provisions defining homicide, manslaughter, murder,
conspiracy, riot, malicious mischief, assault, and the like.
In November, 1903, eleven persons were indicted in St. Clair County,
Illinois, for participating in the lynching of a negro school teacher
the preceding June.[311]
More than twenty persons were indicted in Vermilion County, Illinois,
for participation in the lynching of a negro at Danville on July 25,
1903, and verdicts of guilty of engaging in an attack on the county jail
were found against eleven men and one woman, the penalty being an
indeterminate sentence in the penitentiary.[312]
In January, 1903, twenty-eight white citizens of Attala County,
Mississippi, were indicted for the lynching of two negroes.[313]
In Alabama, in 1902, some men were given a term in the penitentiary for
lynching a negro, they being “the first like offenders,” according to
Governor Jelks, “to serve the state since the great war. No man had
heretofore gone to the penitentiary for lynching a negro.”[314]
On June 4, 1903, Samuel Mitchell, white, who led the mob that lynched
Thomas Gilyard, a negro, at Joplin, Missouri, on April 15, preceding,
was sentenced to ten years’ imprisonment in the penitentiary, and two
other men were still to be tried for their part in the burning of negro
houses following the lynching.[315]
In California nineteen indictments were returned against persons who
engaged in the lynching of four men and a boy on May 31, 1901, at
Lookout, in Modoc County, and it was said that the State’s attorney
worked up the case against great opposition.[316]
There were several persons under indictment in Wyoming in February,
1904, for connection with a lynching which occurred in Big Horn County
on July 19, 1903.[317]
No convictions of persons participating in lynchings in either
Tennessee, Kentucky, or Texas have been brought about under the
anti-lynching laws which were enacted by those States in 1897.[318] The
case of the State _vs._ Hughes, charged with participating in a
lynching, came up in DeKalb County, Tennessee, in July, 1902, but it was
found impossible to get a jury to try the case. The court exhausted a
venire of three hundred and fifty, and “found every man in the lot
disqualified—probably having themselves aided in the affair.”[319] On
November 13, 1902, John Davis, colored, was lynched in Marshall County,
Tennessee. Two men, W. P. Hopwood and W. H. L. Johnson, were later
arrested on the charge of participating in the lynching. On January 7,
1903, thirty masked men appeared at the jail where the prisoners were
confined, obtained the keys to the jail, and released the
prisoners.[320]
The measures adopted by Georgia and North Carolina for the suppression
of lynchings have likewise remained inoperative. Numerous lynchings have
taken place in both of these States since 1893, but no lyncher has yet
suffered any of the penalties prescribed by law. A resident of North
Carolina recently made this statement with reference to the punishment
of lynchers in his State: “Judges have charged juries against the crime,
and Governor Aycock—risking his political fortunes for his
convictions—recently offered a reward of $400 each for the conviction of
a party of seventy-five who lynched a negro near Salisbury. But never
yet has the law punished a North Carolina lyncher.”[321]
In general it may be said that the laws proposed far outnumber the laws
enacted against lynching, and that wherever such laws have been enacted
their enforcement has not as yet been such as to warrant any great
reliance on their effectiveness to prevent lynching. It can scarcely be
said that the remedy for lynching lies at present in the direction of
additional State legislation specifically directed against it.
By many it is thought that a federal law on the subject would be most
effective in the suppression of lynchings, and several bills have been
introduced in Congress with this end in view.[322] On January 13, 1902,
Mr. Crumpacker of Indiana introduced a bill in the House of
Representatives for the punishment of persons taking part in the
lynching of aliens. The bill was designed to cover cases similar to the
lynching of the Italians at New Orleans, and jurisdiction over such
offenses was given to the federal courts, persons who had taken part in
lynchings being disqualified from serving as jurors.[323]
Others would have Congress enact a law making all who lynch, whether the
victims be citizens or aliens, and all who instigate, aid, abet, or
shield lynchers, guilty of a crime against the United States. In support
of such a law it is urged that a lyncher could be as easily discovered
and punished as a moonshiner, or a counterfeiter, or a mail robber; that
if the object of our constitution is to insure domestic tranquility,
promote the general welfare and secure the blessings of liberty to
ourselves and our posterity, it ought to include the power to punish
those who defy the government established by the constitution and take
life without due process of law; and that if it was worth while to amend
the constitution to prevent the denial of the electoral franchise, it is
also worth while to amend the constitution to prevent and punish the
denial of justice.[324]
A further ground for bringing lynching within the jurisdiction of
federal courts and federal law is the fact that the lynching of an alien
may involve the United States in international complications, although
the federal government can take no action in the premises. Diplomatic
intercourse was actually broken off between Italy and the United States
during the controversy over the matter of an indemnity for the lynching
of Italian citizens at New Orleans in 1891.[325] In a number of other
instances foreign countries have successfully demanded indemnities from
the United States through the Department of State for injuries done
their citizens by mob violence. The following table gives the sums of
money that have been paid to foreign countries since 1880 in the
settlement of such claims.
INDEMNITIES PAID FOR INJURIES TO ALIENS.[326]
YEAR WHEN COUNTRY TO LOCALITY WHERE INJURIES AMOUNT OF INDEMNITY
PAID WHICH PAID WERE INFLICTED
1887 China Wyoming $147,748.74
1888 China Pacific Coast 276,619.75
1892 Italy Louisiana 24,330.90
1896 Italy Colorado 10,000.00
1896 Great Britain Louisiana 1,000.00
1896 Great Britain Nebraska 1,800.00
1897 Italy Louisiana 6,000.00
1898 Mexico California 2,000.00
1901 Mexico Texas 2,000.00
1901 Italy Louisiana 4,000.00
1903 Italy Mississippi 5,000.00
—————-——————————
Total $480,499.39[327]
With the exception of the payment to China in 1887, “in consideration of
the losses unhappily sustained by certain Chinese subjects by mob
violence at Rock Springs, in the Territory of Wyoming, September 2,
1885,” these indemnities have been paid “out of humane consideration,
without reference to the question of liability therefor.” While they
have thus not been paid in discharge of an express obligation recognized
by the United States, there has been a moral obligation recognized and
the federal government has felt it to be incumbent upon itself to
redress grievances of this nature.[328]
It is a peculiar situation when the United States can thus be called
upon to pay indemnities for lynchings and yet cannot take steps in the
several States to prevent their occurrence and cannot in any way hold
the State governments responsible. That this defect in the federal
constitution should be remedied seems, from this standpoint, wholly
desirable. It is very doubtful, however, whether such an object could be
accomplished at the present time, and still more doubtful whether a
federal law could be enacted and enforced against lynching at the
present time, without reviving the sectionalism and many of the evils of
the Reconstruction Period. When Senator Gallinger of New Hampshire
offered a resolution in the 57th Congress that the Committee on the
Judiciary be directed to make an inquiry into the subject of lynchings
and to report whether there be any remedy for the evil, his reference to
a recent lynching in a Southern State was instantly resented by the
senators from that State, and the course which the debate took upon the
resolution made it apparent at once that an attempt to make such an
investigation would be an unwise step. The matter was dropped by Senator
Gallinger’s making the request that the resolution lie on the table
subject to his call.[329]
Of the numerous proposals that have been made for reform in the system
of legal procedure in the United States, as a remedy for lynching, none
is more noteworthy or fundamental than that put forward by Justice
Brewer of the United States Supreme Court. He argues that men are afraid
of the law’s delays and the uncertainty of its results; that if all were
sure that the guilty ones would be promptly tried and punished, the
inducement to lynch would be largely taken away. He suggests, therefore,
the taking away of the right of appeal in criminal cases as one means of
checking lynching.[330]
While the law’s delays in criminal cases are probably not so great as
they are popularly believed to be, the popular impression being due to
over-emphasis of flagrant cases,[331] still the fact that such an
impression is a prevalent one makes it extremely easy for a community to
countenance the summary and illegal punishment of the perpetrator of a
crime which has been particularly shocking to the community, a crime for
which many persons in the community really feel that no punishment can
be quite adequate. A case in point is that of the lynching of George
White, colored, at Wilmington, Delaware, on June 22, 1903. A refusal by
the judges to grant an immediate trial on the ground that the accused
could not then have a fair and impartial trial because of the excited
state of public feeling, was publicly urged as a reason for the people
taking the law into their own hands and “upholding the majesty of the
law.” The outcome was that White was burned at the stake and those who
participated in the lynching were allowed to go free, the coroner’s jury
returning a verdict that the deceased came to his death at the hands of
persons unknown.
It is in this way that the popular idea that the law’s delays are so
great as frequently to defeat the ends of justice, whether it have much
or little basis in fact,[332] contributes to the continuance of the
practice of lynching. If to abolish the right of appeal in criminal
cases, or to limit it to a considerable extent, will further the ends of
justice, as there seems to be good reason for believing that it will,
such a step will have a tendency to check lynching by making void one of
the excuses most frequently urged in extenuation of the practice.
Lynching is a phenomenon in American society too deeply rooted to be
destroyed by merely taking away the right of appeal in criminal cases,
but that a measure will render less plausible a prominent excuse for its
existence and continuance makes such a measure worthy of serious
consideration.
The governors of several States have recently asked that they be given
more power, and that more resources be placed at their command, in order
that they may take the initiative both in preventing lynchings and in
punishing lynchers. Something may be accomplished by granting their
requests. During the fourteen years immediately preceding Governor
O’Ferrall’s inauguration there were sixty-two lynchings within the
bounds of the State of Virginia, but during the four years of his
administration there were but three, and in neither case was the chief
executive in a position either to prevent the crime or punish the
offenders.[333] The most hopeful sign at the present time is the stand
which the governors and minor officers in a number of States, in the
South as well as in the North, have taken against lynching.[334]
Governor Vardaman, of Mississippi, in his recent rather sensational
rescue of a negro murderer from a mob,[335] has at least demonstrated
the possibility of preventing lynchings and enforcing the law. Governor
Jelks, of Alabama, and Governor Durbin, of Indiana, have not only been
outspoken in their denunciation of lynchings but have taken active
measures to prevent them. A number of sheriffs in various States have
within the last two years prevented lynchings by courageously facing
mobs and making it clear that they would defend their prisoners at the
hazard of their own lives.[336]
So long, however, as coroner’s juries empanelled to inquire into the
death of victims of lynching continue to render the verdict that “the
deceased came to his death at the hands of persons unknown to the jury,”
and so long as it is true that the coroner’s verdict commonly marks the
end of all legal procedure with reference to the occurrence, it is not
to be expected that sheriffs and jailers will hazard their lives in the
protection of prisoners.[337] Prisoners are taken from officers of the
law and lynched, not because the officers are cowards, but because they
are in sympathy with the sentiment in the community which demands
immediate punishment. The public sentiment revealed in the following
citations is not found in isolated instances, but is typical, although
equal frankness of statement cannot always be secured.
A verdict rendered by a coroner’s jury in Wayne County, North Carolina,
in August, 1902, over the body of a negro rapist, read as follows: “We
the undersigned, empanelled as a jury to inquire into the cause of the
death of Tom Jones, find that he came to his death by gun shot wounds,
inflicted by parties unknown to jury, obviously by an outraged public
acting in defense of their homes, wives, daughters and children. In view
of the enormity of the crime committed by said Tom Jones, alias Frank
Hill, we think they would have been recreant to their duty as good
citizens had they acted otherwise.”[338]
In December, 1899, Richard Coleman, a negro ravisher and murderer, was
burned at the stake at Maysville, Kentucky. In response to a letter from
the governor of the State, asking for particulars, a Maysville lawyer
wrote as follows: “The whole thing took place in broad daylight and in
the presence of thousands. The parties to it are known, Mr. Lashbrook
(husband of Coleman’s victim) himself being the leader, but it will be
fruitless to attempt any prosecution of them. The people of this
community are as good as the people of any other community in the State,
or, for that matter, elsewhere, and they are shocked, and, I may say,
well-nigh paralyzed by this gruesome happening in their midst, but I am
satisfied they will not take kindly to any attempt to hold the parties
to the transaction to any responsibilities therefor.”[339]
The only ultimate remedy for lynching is a strong public sentiment
against it. It is necessary, in the United States particularly, to
depend very largely upon public sentiment for the enforcement of law,
and until there is a sentiment, in every community where a lynching
occurs, which will demand the punishment of those who take part in such
lynching, it can scarcely be expected that sheriffs will risk their
lives to protect prisoners, or that prosecuting attorneys, judges, and
juries will co-operate to secure the conviction of lynchers and to make
them feel the full penalty of the law. A member of the Maryland Bar
writing in 1900 said that less than a dozen lynchers had ever been tried
for their crime, and only one or two had been punished. The present
writer has been able to obtain no information which would warrant the
statement that as many as twenty-five persons have been convicted of a
crime and punished for participating in the lynching of over three
thousand persons in the last twenty-two years.[340]
From the greater number of indictments that have been secured against
lynchers during the last two years it would seem that the practice of
lynching is receiving stronger public condemnation now than formerly,
but it must be remembered that the creation of a public sentiment on any
subject is a slow process, particularly with reference to lynching.
Lynching as a crime against society is not yet distinguished from
lynching as the justifiable infliction of a deserved punishment by
private citizens. Furthermore, it is difficult to create a public
sentiment against lynching because of the racial antipathy which
aggravates the evil in certain sections of the United States. Time will
be required for the effectual application of a remedy for lynching. Any
anti-lynching measures that may be adopted must be considered as
palliatives rather than as remedies.
No single statute can be enacted which will put an end to the practice
of lynching; nor is it likely that any single measure can be adopted
which will effectually suppress lynching. Every measure which will tend
to invalidate the excuses offered for the adoption of lynch-law
procedure, every measure which will tend to prevent the commission of
crimes provoking resort to lynch-law procedure, every measure which will
tend to strengthen and maintain a popular reliance on legal procedure,
every measure which will in any way tend to create a strong,
uncompromising public sentiment against lynching, all of these must be
adopted if the practice of lynching is to be made a thing of the past in
the United States.