The Project Gutenberg eBook of Lynch-law, by James Elbert Cutler

232. See J. A. Tillinghast: “The Negro in Africa and America”—Publications of the American Economic Association, May, 1902 (3d Ser., Vol. III, No. 2). This monograph presents an admirable historical perspective of the native characteristics and of the acquirements of the colored race in America.

233. Fanny Kemble, writing in 1838–39, attributed the “personal offensiveness” of negroes to dirt and habits of uncleanliness, asserting that the negroes had no respect for their personal appearance, and that this lack of respect was due to slavery. In her journal, these words are found: “The stench in an Irish, Scotch, Italian, or French hovel are quite as intolerable as any I ever found in any of our negro houses.” In another connection, however, when describing a certain negro named Isaac, she refers particularly to his strong physical resemblance to a monkey, and says that she is much comforted by the fact that this individual “speaks.” See “Journal of a Residence on a Georgian Plantation” (1863), pp. 23–24, 219.

In describing “The Negro in General,” Ratzel writes: “The specific, but hardly definable negro smell is certainly possessed by all, in varying degrees. Falkenstein refers it to the somewhat more oily composition of the sweat, which with uncleanly habits easily develops rancid acids.”—“History of Mankind” (Trans. from 2d German ed. by A. J. Butler, 1897), II, 315; see also II, 266, 301.

A practising physician in the city of New Haven, Conn., has assured the writer that the peculiar odor is again apparent very soon after a negro patient has been given a bath and a change of clothing.

234. Compare statements made in “An Apology for the Short Shrift”—Saturday Review, May 28, 1898 (85: 717).

The following passage is found in “The Selling of Joseph,” by Chief-Justice Samuel Sewall, printed in Boston, June 12, 1700, the first printed protest against slaveholding in Massachusetts: “and there is such a disparity in their Conditions, Colour & Hair, that they can never embody with us, and grow up in orderly Families, to the Peopling of the Land: but still remain in our Body Politick as a kind of extravasat Blood.”—See “Proceedings of the Massachusetts Historical Society” for October, 1863 (Vol. 1863–64, p. 161).

235. William Wells Brown makes this statement in his book, “The Negro in the Rebellion,” pp. 361–362.

236. Compare the manifestation of race prejudice in South Africa, in Australia, and in the Philippines. See article “The Negro Problem in South Africa,” by Arthur Hawkes, Review of Reviews, September, 1903 (28: 325), and the editorial comments on pp. 264–265 of the same issue. See also, article “Race Prejudice in the Philippines,” by James A. Le Roy, Atlantic Monthly, July, 1902 (90: 100).

237. George W. Williams: “History of the Negro Race in America” (1883), II, 72.

238. Evidence for this statement has been presented above. See Chapter IV.

239. Outlook, Dec. 26, 1903 (75: 984).

240. Outlook, Dec. 26, 1903 (75: 984).

241. Outlook, Dec. 26, 1903 (75: 984).

242. See p. 200 of monograph “The Negro in Africa and America,” referred to above. That this crime is of recent origin is either stated or assumed by almost every writer who discusses the lynching of negroes. See, for example, article by Thomas Nelson Page in The North American Review, January, 1904 (178: 33).

243. From a study of the prison statistics furnished by the United States census, Professor Walter F. Willcox came to the positive conclusion that “a large and increasing amount of negro crime is manifested all over the country.”—See an address on “Negro Criminality,” delivered before the American Social Science Association, on Sept. 6, 1899—“Journal of Proceedings,” No. 37, p. 97.

A like opinion is expressed by many writers. See, for example, Forum, October, 1898 (16: 167); Outlook, Oct. 31, 1903 (75: 493); Outlook, Dec. 26, 1903 (75: 984).

244. For a number of references on the subject of rape and its punishment, and also on the subject of burning alive as a legal punishment for crime, during the colonial period, the writer is indebted to Mr. Albert Matthews.

245. “Acts of Assembly of the Province of Pennsylvania” (1775), pp. 45–46.

On May 5, 1722, it became the law of Pennsylvania that importers of servants who have been convicted of rape must pay a duty and enter security for good behavior for one year.—Statutes at Large of Pennsylvania, III, 264.

246. Colonial Laws of New York, I, 765–766.

Compare law of Aug. 8, 1688, in the Island of Barbadoes, which provided that two justices and three freeholders were to “give sentence of Death upon” negroes, for murder, rape, burning houses, &c.—Acts of Assembly Passed in the Island of Barbadoes, From 1648, to 1718 (1721), pp. 140–141.

247. Laws of the State of Delaware (1797), I, 102–105.

By an act passed in January, 1797, thirty-nine lashes well laid on were added to the punishment for an attempted rape on a white woman or maid.—Laws of the State of Delaware (1797), II, 1321–1324.

248. Laws of Maryland (1799), Chapter XIV.

249. See John S. Bassett: “Slavery and Servitude in the Colony of North Carolina”—Johns Hopkins Historical Studies (1896), XIV, 199. In Virginia the punishment of castration was so frequently inflicted upon slaves by the county courts that the Assembly deemed it necessary to enact that “it shall not be lawful for any county or corporation court, to order and direct castration of any slave, except such slave shall be convicted of an attempt to ravish a white woman, in which case they may inflict such punishment.”—See Hening: “Virginia Statutes at Large,” VI, 3; VIII, 358; Samuel Sheperd: “Virginia Statutes at Large” (New Series, 1835), I, 125.

250. “Records of the Court of Assistants of the Colony of the Massachusetts Bay” (J. Noble, 1901), p. 74.

The following passage is taken from the Boston Chronicle, Sept. 26–Oct. 3, 1768 (No. 42, I, 383): “We hear that a negro fellow was tried at the Assizes held lately at Worcester, for a rape, and found guilty, and received sentence of death.—A white man was also tried and found guilty of the same crime, and sentenced to sit on the gallows.”

251. See “Proceedings of the New Jersey Historical Society” (1874), 2d Series, III, 178.

252. See J. R. Brackett: “The Negro in Maryland” (1889), p. 131.

253. Pennsylvania Gazette, Dec. 14, 1744 (N. J. Archives, XII, 244).

254. The basis for these statements is a collection of notes on legal burning alive made by Mr. Albert Matthews. Compare John Fiske: “Old Virginia and her Neighbours” (1897), II, 265.

255. Section LVI of “An Act for the better Ordering and Governing Negroes and other Slaves in this Province,” dated the 10th day of May, 1740, reads as follows: “And whereas, several negroes did lately rise in rebellion, and did commit many barbarous murders at Stono and other parts adjacent thereto; and whereas, in suppressing the said rebels, several of them were killed and others taken alive and executed; and as the exigence and danger the inhabitants at that time were in and exposed to, would not admit of the formality of a legal trial of such rebellious negroes, but for their own security, the said inhabitants were obliged to put such negroes to immediate death; to prevent, therefore, any person or persons being questioned for any matter or thing done in the suppression or execution of the said rebellious negroes, as also any litigious suit, action, or prosecution that may be brought, sued or prosecuted or commenced against such person or persons for or concerning the same; Be it enacted by the authority aforesaid, That all and every act, matter and thing, had, done, committed and executed, in and about the suppressing and putting all and every the said negro and negroes to death, is and are hereby declared lawful, to all intents and purposes whatsoever, as fully and amply as if such rebellious negroes had undergone a formal trial and condemnation, notwithstanding any want of form or omission whatever in the trial of such negroes; and any law, usage or custom to the contrary thereof in any wise notwithstanding.”—“Statutes at Large of South Carolina” (edited by D. J. McCord, 1840), VII, 416–417.

256. Instances are recorded where Indians who had committed the crime of rape on white females were legally dealt with. See “Records of the Colony of the Massachusetts Bay in New England,” II, 23; “New Haven Colonial Records” (Hoadly, 1858), p. 543; “Rhode Island Colonial Records,” II, 420, 427, 428; “Records of the Court of Assistants of the Colony of the Massachusetts Bay” (J. Noble, 1901), pp. 21–22; “Plymouth Colony Records,” VI, 98.

257. Niles’ Register, Dec. 25, 1813 (5: 279).

258. Niles’ Register, Aug. 25, 1821 (20: 415–416).

259. Niles’ Register, June 8, 1822 (22: 238).

260. Niles’ Register, July 13, 1822 (22: 320).

261. Niles’ Register, Sept, 14, 1822 (23: 18). It was in the year 1741 that the thirteen blacks were burned at the stake in New York by judicial decree.

262. Additional evidence has been given above in another connection. See Chapter IV.

263. By an act passed the 11th day of May, 1754, power was given the justice to postpone the trial to such time as he thought proper, owing to the frequent difficulty of procuring the justice and the freeholders and the witnesses to attend the trial within the three days.—“Statutes at Large of S. C.” (edited by D. J. McCord, 1840), VII, 426–427.

264. “Statutes at Large of South Carolina” (edited by D. J. McCord, 1840), VII, 400–402. It was also provided by this act, which was passed the 10th day of May, 1740, that an oath for the faithful discharge of duty be taken by the freeholders when they assembled with the justices for the trial of prisoners, that the evidence of slaves, without oath, be admitted against slaves, that for certain offenses certain penalties be imposed, that compensation be allowed the owners of slaves executed, that masters and other persons be compelled to give evidence, that the constables execute or punish slaves according to the judgments rendered, &c., &c.

265. The laws of Pennsylvania, New York, New Jersey, and Delaware have been cited above.

266. “Negro Outrage no Excuse for Lynching”—Forum, November, 1893 (16: 300).

267. Walter H. Page: “The Last Hold of the Southern Bully”—Forum, November, 1893 (16: 303).

268. “Lynching of Black People because they are Black”—Our Day, 13: 298 (1894).

269. The following passage is taken from an editorial in the Houston (Texas) Post of October 23, 1902: “From the same telegraph pole from which the two negroes were hanged at Hempstead on Tuesday, a rapist was hanged less than two months ago. The circumstances of the first execution were fully known to the victims of the second mob. This teaches very plainly that lynching does not deter.”

270. See “The Epidemic of Savagery,” Outlook, Sept. 7, 1901 (69: 9); also, “The Lynching of Negroes,” by Thomas Nelson Page, North American Review, January, 1904 (178: 33).

271. Compare the conclusion arrived at by a Georgia lawyer in an article in the Forum, October, 1893 (16: 176).

272. Even such a discriminating and estimable journal as the Nation still makes use of every possible occasion to preach the rights of man in general and of the negro in particular, utterly ignoring the question of capability and responsibility.

273. See, for example, J. H. Ingraham: “The South-West” (1835), II, 185–189.

274. See, for example, Southern Literary Messenger, March, 1839 (5: 219).

275. See Public Opinion, Feb. 11, 1893 (14: 448).

276. See Our Day, May, 1893 (11: 333).

277. See Haydn’s “Dictionary of Dates” (1898), p. 681. Also, “The Cyclopedic Review of Current History” (1894), p. 647.

278. The New York World secured “interviews” with nineteen governors on the subject of the proposed visit of the committee. See American Law Review, November-December, 1894 (28: 904).

279. See Literary Digest, July 14, 1894.

280. See Independent, May 16, 1901 (53: 1133).

281. See article by Edward Leigh Pell on “Prevention of Lynch-law Epidemics,” Review of Reviews, March, 1898 (17: 321).

282. See Georgia Code, 1895, Sections 356–359.

283. Public Laws of North Carolina, 1893, ch. 461.

284. Georgia Laws, 1895, Part I, Title 7, No. 209.

285. Constitution of South Carolina, Section 6, Article 6. This article of the constitution with additional provisions necessary to make its operation effective was passed by the legislature in 1896 as “An Act to Prevent Lynching.” See Acts of South Carolina, 1896, p. 213.

286. 92 Ohio Laws 136. In this the original act the amount of damages that could be recovered was fixed at a certain sum; for assault, “the sum of $1000,” for suffering lynching “the sum of $500,” &c. In thus fixing the amount of damages it was said that the legislature had assumed judicial power and had thus rendered the act unconstitutional. To remedy this defect, the legislature on April 21, 1898, amended the act so that the amount of damages that might be recovered should be, for assault “any sum not exceeding $1000,” for suffering lynching “any sum not exceeding $500,” &c. See 93 Ohio Laws 161. Being Sections 4426–4 to 4426–14 of the Revised Statutes.

287. 93 Ohio Laws 411. Being Section 6908 of Title I, Part Fourth, Revised Statutes, Crimes and Offenses.

288. Acts of Tennessee, 1897, Chapter 52. This act was approved March 24, 1897.

289. Laws of Kentucky, 1897, Chapter 20. For the amendment and re-enactment of this law see Laws of Kentucky, 1902, Chapter 25. In the above résumé of the law nothing has been included from the sections which were repealed in 1902.

290. Laws of Texas, 1897, Chapter 13. This act was approved June 19, 1897.

291. Acts of Indiana, 1899, Chapter 218. Being Sections 2065a–2065d, 2065f of the Revised Statutes (1901).

By an act approved Feb. 24, 1899, boards of county commissioners in Indiana are authorized to pay five hundred dollars reward for the arrest and conviction of a murderer or lyncher.—Acts of 1899, Chapter 100.

292. Acts of Indiana, 1901, Chapter 140. Being Section 2065e of the Revised Statutes (1901).

293. Public Acts of Michigan, 1899, No. 252. Repealed by Public Acts of Michigan, 1903, No. 26.

294. Constitution of Alabama, Section 138.

295. Acts of West Virginia, 1903, p. 305; Joint Resolution, No. 12, adopted Feb. 3, 1903.

296. See newspapers of the date Dec. 26, 1902, and subsequent dates.

297. Laws of Kansas, 1903, Chapter 407. This act was approved March 10, 1903.

298. Laws of Kansas, 1903, Chapter 221. This act was approved March 11, 1903.

299. As early as the year 1796, this measure was suggested as a means of preventing the administration of popular justice by extra-legal methods. In that year Governor St. Clair, in a report to the Secretary of State concerning “Official Proceedings in the Illinois Country,” after describing an affair in which some Indians were summarily put to death, the circumstances of which he characterized as “not only not blameable but laudable,” continued in these words: “I am sorry however, to add that, had the affair been ever so criminal in its nature, it would have been, I believe, impossible to have brought the actors to punishment. The difficulties that have occurred in cases of that nature in various parts of the United States, as well as in this Territory, and the stain it fixes on the national character, has often led me to consider whether justice could not be secured to the Indians by adding some sanction to the law beyond what is usual between the citizens, and it has occurred to me that, were a pretty heavy pecuniary fine to be set upon the murder of an Indian, and a proportional one for lesser injuries, to be levied upon the counties where the offense was committed if the offenders were not brought to justice, it would probably have the effect, for it is often seen that the minds of men little tinctured with justice or humanity, have a pretty strong sympathy with their pockets, and I believe it to be a subject within the province of the general legislature.”—The St. Clair Papers (1882), Vol. II, p. 397.

300. For the purpose of obtaining accurate and complete information on the subject of anti-lynching laws the writer asked the following questions of thirty-three attorneys-general in the United States, inclosing in each letter a self-addressed and stamped envelope for reply:

1. What anti-lynching laws have been enacted in your State since 1890? (Please give citation to statutes.) If there are no anti-lynching laws in your State, mention any attempts that have been made to enact such laws.

2. Have any cases been tried under any of such laws or any attempts been made to that effect, and what has been the record and the outcome in each case?

3. Are such laws effective in any respect?

Twenty-four replies were received to the thirty-three letters sent, and upon examination a fact became evident which is probably rather more than a coincidence—the nine unanswered letters were the ones which were sent to the attorneys-general of the States, with one exception, in which the greater number of lynchings have occurred. The exception is scarcely worth noting, however, because it was a reply which was very tardy and very non-committal.

302. Brown v. Orangeburg Co., 55 S. C. 45; 32 S. E. 764. The decision of the Supreme Court was rendered on April 20, 1899.

304. Mitchell was a negro and was lynched on June 4, 1897, for the crime of rape.

305. Caldwell lost again in the common pleas and circuit courts, and went no further.—Deputy Clerk of Cuyahoga County in letter to the writer.

306. See note, p. 236. The supreme court by this decision upheld the act in its original form.

309. See p. 185. Compare Chart I.

310. New York Times, Jan. 21, 1904. Governor Sayers of Texas made similar statements in his annual message to the legislature of Texas on Jan. 16, 1903.

311. New York Times, Nov. 3, 1903.

312. New York Times, Sept. 7, 1903.

313. Richmond (Va.) Planet, Feb. 14, 1903.

314. Governor’s message to the legislature, Jan. 14, 1903.

315. New York Evening Sun, June 5, 1903.

316. After a trial which lasted three months, the first man tried was acquitted.—Denver (Colo.) Republican, Feb. 28, 1902.

317. Attorney-general of Wyoming in letter to the writer.

318. A woman whose husband was hanged by a mob has recently filed suit against twenty-six “prominent citizens” of Fleming County, Kentucky, for $50,000 damages, claiming that they were members of the mob which lynched her husband.—New York Times, July 14, 1904.

319. Chattanooga (Tenn.) Times, July 27, 1902. It will be remembered that by the Tennessee act any person guilty of direct or indirect participation in a lynching was declared to be incompetent to serve on a jury, and that the court was to carefully exclude all such persons from both grand and petit juries. See p. 237.

320. Despatch from Lewisburg, Tennessee, in New York Commercial Advertiser, Jan. 8, 1903.

In October, 1903, a grand jury in Moore County, Tennessee, indicted twenty-two members of a lynching mob.—See Outlook, Oct. 24, 1903 (75: 427).

321. Atlantic Monthly, February, 1904 (93: 155).

322. See bills introduced during 57th Congress, 1st Session: Senate Bill 1117; House bills 21, 4572.

323. Congressional Record, 57th Congress, 1st Session, p. 636.

324. See Green Bag, September, 1900 (12: 466).

325. New York Tribune, April 15, 1892.

326. Some of these indemnities cover loss of property and bodily injuries as well as loss of life.

327. See, in addition to New York Tribune, April 15, 1892, United States Statutes at Large, 49th Cong., 2nd Sess., Ch. 253; 50th Cong., 1st Sess., Ch. 1210; 54th Cong., 1st Sess., Ch. 373; 55th Cong., 1st Sess., Ch. 9; 55th Cong., 2d Sess., Ch. 571; 56th Cong., 2d Sess., Ch. 831; 57th Cong., 2d Sess., Ch. 1006.

328. American Law Review, September-October, 1900 (34: 709).

329. See Congressional Record, 57th Congress, 1st Session, pp. 5902–5905, 5956, 6214.

330. Leslie’s Weekly, Aug. 20, 1903; Independent, Oct. 29, 1903 (55: 2547).

331. See Harvard Law Review, March, 1904 (17: 317).

332. On the work of the courts in the State of New York, see “Report of the Commission on Law’s Delays,” January, 1904.

333. Review of Reviews, March, 1898 (17: 321).

334. Governor Newton C. Blanchard, at his inauguration on May 16, 1904, at Baton Rouge, Louisiana, stated his position with reference to lynchings in unmistakable language. “Lynchings,” he said, “will not be permitted under any circumstances, if it be possible for the military at the command of the Governor to get there in time to prevent them. And if they occur before the intervention of the Executive can be made effective, inquiry and investigation will be made and prosecution instigated. Sheriffs will be held to the strictest accountability possible under the law for the safety from mob violence of persons in their custody.... The courts are adequate to the prompt vindication of the law and the punishment of crime.”—Outlook, May 28, 1904 (77: 197).

335. Governor Vardaman ordered out two companies of militia and went himself to the scene of the trouble in a special train, bringing the negro away in his private car, at a cost to the State, it was said, of $250,000. See New York Times, Feb. 29, 1904.

336. Vigilance and prompt action on the part of the officers of the law, together with the presence of the militia, probably prevented the lynching of the three negroes who assaulted Mrs. Biddle at Burlington, New Jersey, on July 5, 1904.—See New York Times, July 16, 1904.

337. Governor Jelks, of Alabama, in his message of Jan. 14, 1903, said in reference to the lynching in Pike County of a negro who was taken away from a constable: “His offense was probably swearing contrary to one of his white neighbors in a justice trial on a proof of character. This was a cold-blooded murder and without excuse at all.... The murderers go about. None of them will be hanged as they should be.”

338. The News-Observer, Raleigh, North Carolina, Aug. 27, 1902.

339. American Law Review, March—April, 1900 (34: 238).

340. For a discussion of the problem of punishing lynchers and for some statistics with reference to the punishment of persons who participated in lynchings during the first six months of the year 1892, see paper by George C. Holt, on “Lynching and Mobs,” American Journal of Social Science, No. 32, p. 67 (November, 1894).

341. Carroll D. Wright: “Outline of Practical Sociology” (1899), p. 357.

342. This view of the matter is ably set forth in the Green Bag for September, 1900 (12: 466), by O. F. Hershey of the Maryland Bar.

The same idea is expressed in a different way in an article on “American Quality,” by N. S. Shaler. See International Monthly, July, 1901.