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

by James Elbert Cutler

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.