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.
CHAPTER IX
Some Conclusions
The question naturally arises, what is the peculiarity about American society which fosters and tolerates lynching? Why is lynching a peculiarly American institution? It has been suggested that the explanation lies along racial lines. Some have said that the Scotch-Irish are responsible for the introduction into this country of the practice of illegally punishing public offenders. Others say that it is race prejudice, a result of the coming together of many races in one country, and particularly that it is the racial antagonism between the white race and the negro race, which explains the matter. Looking at the history of the practice in the United States from colonial times down to the present day, one can scarcely regard such an explanation as either adequate or conclusive. The real explanation lies along a somewhat different line, and it can be pointed out best by drawing some contrasts between the administration of the law in the United States and its administration in the older countries of Europe.
The American people are not any more disposed toward lawlessness—they are not less law-abiding—than European peoples; it is rather that they maintain a wholly different attitude toward the law. Social and political conditions are different, and the law, instead of being something in itself to reverence and respect, is little more than a device for securing freedom. The value of laws as rules of conduct is not minimized but there is no sense of sanctity pertaining to them. To outwit, avoid, defy, or forget the laws is not a serious offense so long as an appeal can be made to the individual sense of justice in support of such courses of action.
In Europe, where the statutes have grown up from tradition and ancient custom, the law is regarded as a more sacred institution; in a very real sense it is the product of a superior authority. Law in its institutional sense is as much a predetermined factor in daily affairs as is one of the laws of nature. Social and political conditions are fixed. Politics do not enter into the enforcement of law. Civilization is distributed in a more nearly equal measure and the law is enforced with equal vigor over the whole country.[[341]] The judicial and administrative officers are persons socially and politically distinct from the masses, and their individuality is so completely subordinated to their representative capacity that the law thus comes to have a majesty and dignity which can be given it in no other way.
In the United States, on the contrary, the body of the law lacks the support of long tradition and ancient practice. The early immigrants brought with them the European conception of law, but in the midst of new conditions, with no strong government to enforce it with an impartial and an iron hand, along with the growth of the democratic spirit, a new esprit des lois, as Montesquieu would call it, has been developed. Where the people, either directly or through their representatives, make the laws and then elect the officers who are to enforce them, it is inevitable that the legal machinery will prove powerless to control popular excitements. Politics also enter very largely into the whole question. In remote districts, too, the people seldom have occasion to meet any other officers of the law than their own neighbors and friends whom they have elected to minor civil offices. It is for this reason that the execution of the law varies so greatly in different parts of the United States, being either vigorous or lax, in accordance with the moral sentiment of the community.
In a monarchy or a highly centralized form of government, the law is made for the people and enforced against them by officials who are in no sense responsible to them.
In a democracy with a republican form of government, like the United States, such is not the case. The people consider themselves a law unto themselves. They make the laws; therefore they can unmake them. Since they say what a judge can do, they entertain the idea that they may do this thing themselves. To execute a criminal deserving of death is to act merely in their sovereign capacity, temporarily dispensing with their agents, the legal administrators of the law. While not always expressed in language so unmistakable in meaning, yet this is the spirit exhibited, the vague and perhaps unconscious attitude toward the law, which seems particularly to pervade the United States.
The tendency toward public disorder has existed in this country from its earliest settlement, and as the line of the frontier has slowly moved westward there has always been a region on the border where the forces of law were unorganized. There has thus been a constant opportunity for a plea of necessity in certain cases for resorting to the popular execution of justice. In recent years the customary explanations of lynchings attribute them to mob rule, emotional insanity of the crowd, race prejudice, contempt for the “niggers,” intense community feeling, vivid hatred of crime, lex talionis and the like. It is often asserted that lynchings occur because the courts are slow, uncertain, and unduly sympathetic with the rights of the accused, because corrupt jurymen, shrewd lawyers, the technicalities of the law or the undue sympathies of the pardoning powers frequently prolong and save a guilty person’s life. While it is true on psychological grounds that punishment to be effective must be prompt and certain, and while such explanations have validity in particular cases, the fundamental explanation lies deeper. It is to be found in the peculiar and distinctively American attitude toward those institutions connoted by the term “the law.”[[342]] There is a readiness on the part of the people in the United States to take the law into their own hands which is not found in other countries, and the consequent immunity from punishment which is generally accorded to lynchers renders an American mob exceedingly open to the suggestion of lynching.
It is on such grounds that the existence of lynching as a peculiarly American institution is to be explained. Such are the conditions and such has been the conception of the law which has fostered a public sentiment in the United States excusing and apologizing for lynchings. The writer of a book published in London in 1837 was not far wrong when he wrote: “The Lynch law, is not, properly speaking, an opposition to the established laws of the country, or, is at least, not contemplated as such by its adherents; but rather as a supplement to them,—a species of common law, which is as old as the country.”[[343]]