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.

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.