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.