Lynch-law; an investigation into the history of lynching in the United States

The question naturally arises, what is the peculiarity about American society which fosters and tolerates lynching? Why is lynching a peculiarly American institution? It has been suggested that the explanation lies along racial lines. Some have said that the Scotch-Irish are responsible for the introduction into this country of the practice of illegally punishing public offenders. Others say that it is race prejudice, a result of the coming together of many races in one country, and particularly that it is the racial antagonism between the white race and the negro race, which explains the matter. Looking at the history of the practice in the United States from colonial times down to the present day, one can scarcely regard such an explanation as either adequate or conclusive. The real explanation lies along a somewhat different line, and it can be pointed out best by drawing some contrasts between the administration of the law in the United States and its administration in the older countries of Europe.

The American people are not any more disposed toward lawlessness—they are not less law-abiding—than European peoples; it is rather that they maintain a wholly different attitude toward the law. Social and political conditions are different, and the law, instead of being something in itself to reverence and respect, is little more than a device for securing freedom. The value of laws as rules of conduct is not minimized but there is no sense of sanctity pertaining to them. To outwit, avoid, defy, or forget the laws is not a serious offense so long as an appeal can be made to the individual sense of justice in support of such courses of action.

In Europe, where the statutes have grown up from tradition and ancient custom, the law is regarded as a more sacred institution; in a very real sense it is the product of a superior authority. Law in its institutional sense is as much a predetermined factor in daily affairs as is one of the laws of nature. Social and political conditions are fixed. Politics do not enter into the enforcement of law. Civilization is distributed in a more nearly equal measure and the law is enforced with equal vigor over the whole country.^[341] The judicial and administrative officers are persons socially and politically distinct from the masses, and their individuality is so completely subordinated to their representative capacity that the law thus comes to have a majesty and dignity which can be given it in no other way.

In the United States, on the contrary, the body of the law lacks the support of long tradition and ancient practice. The early immigrants brought with them the European conception of law, but in the midst of new conditions, with no strong government to enforce it with an impartial and an iron hand, along with the growth of the democratic spirit, a new esprit des lois, as Montesquieu would call it, has been developed. Where the people, either directly or through their representatives, make the laws and then elect the officers who are to enforce them, it is inevitable that the legal machinery will prove powerless to control popular excitements. Politics also enter very largely into the whole question. In remote districts, too, the people seldom have occasion to meet any other officers of the law than their own neighbors and friends whom they have elected to minor civil offices. It is for this reason that the execution of the law varies so greatly in different parts of the United States, being either vigorous or lax, in accordance with the moral sentiment of the community.

In a monarchy or a highly centralized form of government, the law is made for the people and enforced against them by officials who are in no sense responsible to them.

In a democracy with a republican form of government, like the United States, such is not the case. The people consider themselves a law unto themselves. They make the laws; therefore they can unmake them. Since they say what a judge can do, they entertain the idea that they may do this thing themselves. To execute a criminal deserving of death is to act merely in their sovereign capacity, temporarily dispensing with their agents, the legal administrators of the law. While not always expressed in language so unmistakable in meaning, yet this is the spirit exhibited, the vague and perhaps unconscious attitude toward the law, which seems particularly to pervade the United States.

The tendency toward public disorder has existed in this country from its earliest settlement, and as the line of the frontier has slowly moved westward there has always been a region on the border where the forces of law were unorganized. There has thus been a constant opportunity for a plea of necessity in certain cases for resorting to the popular execution of justice. In recent years the customary explanations of lynchings attribute them to mob rule, emotional insanity of the crowd, race prejudice, contempt for the “niggers,” intense community feeling, vivid hatred of crime, lex talionis and the like. It is often asserted that lynchings occur because the courts are slow, uncertain, and unduly sympathetic with the rights of the accused, because corrupt jurymen, shrewd lawyers, the technicalities of the law or the undue sympathies of the pardoning powers frequently prolong and save a guilty person’s life. While it is true on psychological grounds that punishment to be effective must be prompt and certain, and while such explanations have validity in particular cases, the fundamental explanation lies deeper. It is to be found in the peculiar and distinctively American attitude toward those institutions connoted by the term “the law.”^[342] There is a readiness on the part of the people in the United States to take the law into their own hands which is not found in other countries, and the consequent immunity from punishment which is generally accorded to lynchers renders an American mob exceedingly open to the suggestion of lynching.

It is on such grounds that the existence of lynching as a peculiarly American institution is to be explained. Such are the conditions and such has been the conception of the law which has fostered a public sentiment in the United States excusing and apologizing for lynchings. The writer of a book published in London in 1837 was not far wrong when he wrote: “The Lynch law, is not, properly speaking, an opposition to the established laws of the country, or, is at least, not contemplated as such by its adherents; but rather as a supplement to them,—a species of common law, which is as old as the country.”^[343]

To the same effect is this “Scotch View of Lynch law” which was occasioned by the lynching of the Italians at New Orleans in 1891. After reviewing the facts and circumstances connected with that lynching, the following comments were made: “This is crude and it is primitive. It is to be deplored and condemned. But it is not without a foundation of reason and justice. The people have committed the administration of justice to a certain machinery; so long as that machinery works without flagrant injustice, it will be left to do the work; but when it utterly breaks down, or goes in the teeth of what is right according to the rough-and-ready ideas of the Americans, the people will resume the function of dealing out punishment direct. The ultimate sanction is brought in. That is the American method. The Briton, when he thinks the ordinary tribunals have failed, writes to the Times, or gets up a monster petition to the Home Secretary, or asks a question of the Houses of Parliament.”^[344]

In certain sections of the United States this readiness on the part of the people to take the law into their own hands receives constant support and encouragement from the racial antipathy which exists between the whites and the negroes. It cannot be said that the lynching of negroes is due to “race prejudice” alone, but it is true that the antagonistic feeling between the two races aggravates the tendency to lynch, when offenses are committed against white persons by negroes. Other racial contrasts in the population have likewise promoted the adoption of extra-legal methods of punishment. From colonial times down to the present day the contemptuous attitude of the whites toward the Indians has undoubtedly been a potent factor in the not infrequent failure to observe due process of law in the treatment of Indians. In the summary treatment of Italians, Mexicans, Chinese, and other aliens, differences in racial characteristics have also played an important part. In very many cases of lynching a racial antipathy has acted as the most prominent contributory cause, and it is this fact that has induced many writers to find in “race prejudice” the ultimate explanation of lynching as an American institution.

The lynching of negroes is now so distinctively an American practice largely because of the racial contrast in the population which is peculiar to this country. Nowhere else in the temperate zone does a colored race of tropical origin come into contact in such numbers with a highly civilized race of European stock. The “native question” of tropical regions has here been transplanted, as it were, to the temperate zone.^[345] Furthermore, the difficulties arising from ethnic contact within the tropics have been intensified rather than lessened by this change of environment. There are the same fundamental differences in racial characteristics and in racial heredity, but these become accentuated and seem even more adverse in a climate where the struggle for existence is of necessity much more vigorous and exacting. In addition, there has developed between the white race and the colored race in the United States an intolerant, inconsiderate spirit directly promoted by an unwise and short-sighted political policy. A great many years will doubtless be required for the effacement of the unfortunate results of past errors, involving as it does a very general understanding and recognition of the ethnic and “societal” factors which enter vitally into the “race question.” Only in so far as this comes about, however, will it be possible to establish a new order of society with an appropriate legal system in the place of that which formerly existed on the basis of the institution of slavery.

The assumption made by many writers that more negroes are lynched for the crime of rape against white women than for any other crime is without foundation in fact. Statistics show that not more than thirty-four per cent of the negroes summarily put to death during the last twenty-two years have been lynched for that crime, either alleged, attempted, or actually committed. Lynching for that crime, however, leads to lynching for other crimes and also furnishes a ground for an appeal to public sentiment to condone the practice of lynching.

Since the negroes were made free American citizens a large class of the younger generation has become utterly shiftless and worthless, many of them being vicious and dangerous individuals in a community. Professor DuBois, than whom there is probably no man better qualified to make a careful and conservative estimate, says that at least nine per cent of the county black population in the Black Belt are thoroughly lewd and vicious.^[346] Lynching has been resorted to by the whites not merely to wreak vengeance, but to terrorize and restrain this lawless element in the negro population. Among the Southern people the conviction is general that terror is the only restraining influence that can be brought to bear upon vicious negroes. The negroes fear nothing so much as force, and should they once get the notion that there is a reasonable hope of escape from punishment, the whites in many parts of the South would be at their mercy.^[347] There is no evidence, however, to show that the punishment of negroes by mob violence tends to decrease lawlessness among the negroes, or even tends to restrain the vicious element from committing offenses against the whites. On the contrary, lawlessness seems to beget lawlessness and the publicity given to revolting crimes by lynching the perpetrators of them seems really to incite others to commit similar crimes, or at least suggests to others like crimes when opportunity offers.

The frightful tortures and the burnings which have taken place in the last few years in connection with the lynching of negroes is partly to be accounted for by the fact that lynchings are now carried on by a lower class of whites than formerly.^[348] The power of suggestion as an incentive to crime is also evident in this barbarous conduct of lynching mobs. The publicity given in the newspapers, particularly the sensational ones, to the details of such tragic scenes has undoubtedly been largely responsible for the frequency of their recurrence.^[349] The relations between the younger generations of the two races are, besides, much less cordial and amicable than were those which existed between the generations immediately preceding; there is less of a mutual understanding. The relation of master and slave has been destroyed and no new relation has yet been firmly established in its place. In the process of adjustment to a new order of things there has been constant friction between the two races, and when an offense has been committed upon a white person by a negro, particularly if an assault has been made upon the person of a white woman or child, the exasperation of the whites has known scarcely any bounds.

While the decrease in the number of lynchings per year since the early nineties affords some hope for the future with reference to the suppression of lynchings, still the number of burnings and the number of cases in which the victims are subjected to extreme torture indicate that too much reliance cannot be placed upon any apparent decline in the tendency to lynch. The fact also that lynchings frequently occur in communities where such summary and illegal procedure had not previously been permitted forebodes more lynchings in the future. The seriousness of the situation with reference to the practice of lynching in the United States is not yet fully realized. There is no little ground for apprehension in the fact that it is becoming common for cries of “Lynch him,” “Hang him,” “Get a rope and string him up,” &c., to be heard, even on the streets of New York City, whenever a crowd gathers in response to a feeling of popular excitement and indignation over the perpetration of some atrocious crime.

In the course of this investigation into the history of lynching it has become evident that there is usually more or less public approval, or supposed favorable public sentiment, behind a lynching. Indeed, it is not too much to say that popular justification is the sine qua non of lynching. It is this fact that distinguishes lynching, on the one hand, from assassination and murder, and, on the other hand, from insurrection and open warfare. A lynching may be defined as an illegal and summary execution at the hands of a mob, or a number of persons, who have in some degree the public opinion of the community behind them. When the term first came into use it meant the infliction of corporal punishment, particularly whipping. The term is now used exclusively to signify the infliction of the death penalty in a summary fashion, usually by hanging. But whatever the penalty imposed or the manner of its imposition, the sentiment frequently expressed in a community where a lynching has occurred is to the effect that the victim or victims got no more than was deserved.

It further appears from this investigation that no one cause or crime can be assigned for lynching. Lynchings take place for various causes. At one time there may be a lack of ordinary tribunals of justice, at another time there may be doubt as to the efficiency of the legal machinery. Lynchings may take place because the offense is outside the law but is deemed serious enough to merit severe punishment. They may occur because of the barbarity and fiendish nature of the crime committed. They may occur for one reason or for another; the only factor that is always present is a disorganized state of society or a condition of popular excitement and resentment when reliance on ordinary legal procedure is at a minimum.

Of the legal remedies for lynching which have been proposed, few have been enacted into laws, and where such measures have been placed upon the statute-books they have not as yet been so effectively administered as to inspire confidence in them as an ultimate means of suppressing the practice. The problem of finding a remedy for lynching is really a problem of increasing and maintaining a popular reliance on the formulation and the administration of the law. Every measure which will in any way promote such a reliance, either by invalidating the excuses offered in justification of the practice or by developing a strong public sentiment against it, deserves serious consideration, and every such measure, unless likely to be productive of other evils possibly greater, should be immediately adopted and put into operation.

The existence of the practice of lynching in the United States is a national disgrace and should be so considered by every citizen no matter in what part of the country his home may be. This, however, does not justify citizens of the Northern section in violently attacking citizens of the Southern section every time that a lynching occurs in that section, or vice versa. Each section and indeed each community must hold itself responsible for the prevention of lynchings. Neither European philanthropists nor the Northern press or pulpit can do very much toward preventing such occurrences in the South. It is a question with which the South alone can properly deal and it is a problem which the intelligent men of the South are best able to solve. The efforts of the Southern Education Board and the General Education Board to educate both the whites and the blacks and lift them to a higher plane of living will do much toward preventing lynchings. The work done by such schools as the Hampton Institute and the Tuskegee Normal and Industrial Institute, and the principles advocated by such men as Booker T. Washington, also lead in the same direction.

It has been well suggested that the Northern papers and the Southern papers should exchange texts—the Northern press should preach against negro crime, the Southern press should preach against lawlessness and race prejudice. That this has been done in a few instances gives hope for the future.

To the extent that the colored race increases its industrial efficiency and becomes economically strong in the South will there be a decrease in negro lawlessness and viciousness, and likewise will it merit respect and confidence on the part of the white race. More than anything else the colored race needs wise and able leaders at the present time. The false notions and ideals of the Reconstruction Period have now been largely eradicated. The race is in a position to make substantial and material progress, if under able leadership, and such progress will tend to eliminate the conditions which foster lynching in the South.

If the United States had a monarchical form of government the most practicable means for the suppression of lynchings would consist merely in the publication of an edict by the monarch for the better enforcement of the law. Most lynching mobs could be easily dispersed were the officers of the law resolute and determined men intent upon protecting their prisoners and letting the law take its course; if they were responsible only to their superior officers and not more or less directly responsible to the people, and if they were not in sympathy with the mob to a greater or less degree. Our system of government, however, is in form representative and popular, and all our traditions are against a highly centralized form of government. In the United States it is therefore necessary to depend very largely upon public sentiment for a strict enforcement of the law. Lynch-law will not cease to exist in this country until there is a strong and uncompromising public sentiment against it in every community, a public sentiment which, with a full recognition of the ethnic and “societal” factors involved in the “race question,” and of the necessity for a legal system consistent with these factors instead of one based on abstract principles concerning the rights of all men, will invariably condemn lynchings because they are a crime against society, if for no other reason, and will under no circumstances countenance them because they may be the administration of deserved and well-merited punishments.