Rope & Faggot/Chapter 9

It is a truism that no public evil is ever ended until there is marshalled a potent if not considerable public opinion behind a movement to put an end to the evil. Contrariwise, agitation for legal weapons against the condition complained of constitutes the most effective means of creating such organized opposition to the evil. The history of lynching offers an excellent example of the truth of these statements, and especially of the value of agitation for state and federal laws against the practice.

Such progress as has been made has come in the face of almost insuperable obstacles, not least of which was general indifference. Lynching, like its parent, slavery, has become more or less firmly fixed in American psychology. Among other naïve delusions of the average American is one of himself as a virile, rough-and-ready superman of the rugged, pioneer type, infinitely superior to the effete citizens of other countries. While this type is more noticeable in the rural South, his counterpart exists in every section of the United States. He will be found in the grandstand or bleachers of any baseball ​park, safely among his fellows, yelling: "Kill the umpire!" When a truck-driver runs over a child playing in the streets of even so cosmopolitan a city as New York, the tendency of the American is to explode instantly into cries of "Lynch him!" and "String him up!" In times of unusual excitement, as when a war is being waged, he is trigger-quick to shout: "Pro-German!" or "Bolshevik!" and to recommend instant lynching; or, among the more timid: "They ought to be sent back to where they came from!" When lurid stories of real or alleged crime-waves arouse hysteria, as in the Leopold-Loeb or Sacco-Vanzetti cases, a considerable percentage of citizens of the United States can think of no other solution to the problems involved than "They ought to be taken out and strung up to the nearest telegraph-pole!" or "They ought to be tarred and feathered!" The chief difference between the states where there are many lynchings and those where there are few would seem to be police efficiency, and the freedom from mob violence which comes from that effectiveness.

Earle Fiske Young, of the University of Southern California, presents evidence of the truth of this assertion in Sociology and Social Research for March–April, 1928 (Vol. XII, No. 4). He tabulates lynchings over a period of thirty years in fourteen Southern states by population rates of counties in these states, and thus works out a relation of lynching to the size of political areas. The states studied are Alabama, Arkansas, ​Florida, Georgia, Kentucky, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, and Virginia. Professor Young found that the rate of lynchings (not the number of persons lynched, which would have made the figures even more striking) was inversely as the populousness of the counties.

Counties of less than 10,000 inhabitants were found to have a lynching rate of 3.2; of 10,000 to 20,000 a rate of 2.4; of 20,000 to 30,000 a rate of 2.1; of 30,000 to 40,000 a rate of 1.7; of 40,000 to 50,000 a rate of 2.4; of 50,000 to 100,000 a rate of 1.0; of 100,000 to 200,000 a rate of 0.6; of 200,000 to 300,000 a rate of 0.3; and of 300,000 to 800,000 a rate of only 0.05.

Such figures, Professor Young believes, show that increasing the size of political areas, as was contemplated by various proposed federal laws against lynching, would result in more efficient administration of governmental functions and in overcoming local feelings and prejudices. Whether such a result would really follow or not remains to be seen. But Professor Young's figures do tend to prove that the bigotry, intolerance, and racial animosities of the rural South offer the most difficult of all problems in seeking to end lynching and mob violence.

Against so general a tendency to take the law into the hands of the mob, "educating public opinion" is an up​hill climb. To attain any appreciable success in the effort to end all lynching within a reasonably short period requires the expenditure of an enormous amount of energy, devotion, intelligence, and money. As has already been pointed out, point and direction to such efforts have been given by the goal of state or federal legislation against lynchers. Since the early nineties there have been resolutions, bills, and laws in various state legislatures and in Congress. The fitful discussion aroused by these measures has helped to stir a sluggish public opinion and, being cumulative in its effect, has done much towards impressing upon the public the necessity of ending so terrible an evil. For most of the laws passed this is the utmost that may be said in their favour. The majority of them have been poorly framed, ineffective, superficial, and incapable of enforcement. This has been especially true in those states where rabid colour prejudice prevented the forming of sufficient sentiment for enforcement.

On March 14, 1891 eleven Italians were lynched at New Orleans for alleged conspiracy to murder. These lynchings led to an exceedingly tense situation between Italy and the United States, diplomatic intercourse actually being severed during the controversy. The breach was eventually closed through payment by the United States of damages to the amount of $24,330.90. So ​severe was the criticism heaped upon Louisiana because of this that the Louisiana state legislature was petitioned in strong language by prominent citizens of the state to pass a law against lynching. Nothing was done by the legislature, but the petition was significant as one of the first instances where lynching was recognized as a crime that required special legislation.

So serious a menace to the public welfare had lynching become that other states were also casting about for some possible relief. In 1891 mobs had killed 195 persons, in 1892 the number of victims rose sharply to 235, in 1893 there were 200 victims, and 197 in 1894. These wholesale murders led to petitions to a number of legislatures, and a number of governors in their messages to these bodies included requests for special legislation to curb lynchers. Governor Atkinson of Georgia made a recommendation which had more merit than any of the others, and which would have acted as a powerful deterrent to mobs. His suggestion was that sheriffs or other peace officers in charge of a prisoner whom a mob demanded be required, should the officer be unable or unwilling to protect his prisoner, to remove the handcuffs, arm the prisoner, and permit him to defend his own life. Mobs being made up of cowards, the Governor's reasoning ran, they went forth to mutilate and slay only because they felt certain that no one but the victim would be hurt or killed. Though the odds against an armed prisoner be ten thousand ​to one, the possibility that one of the mobbists might be killed would cause each member of the mob to reflect: "That one person might be me!" Governor Atkinson's suggestion was not acted upon.

In 1893 the Georgia legislature did pass an act of doubtful value and cryptic phrasing. It provided for imprisonment of from one to twenty years of any person found guilty of "mobbing or lynching any citizen . . . without due process of law," and authorized a sheriff to require service of any citizen to help protect a prisoner threatened with lynching. Whether through intention or ineptness, the wording of the bill implied that there might be a mobbing or lynching with due process of law. The law, so far as can be ascertained, had little if any effect in checking lynchings.

The North Carolina legislature in the same year enacted a law that sought to evade the difficulties of trying an alleged lyncher in his own county, where his friends or relatives or sympathizers might be on the jury. This measure gave jurisdiction to the superior court of any county adjoining that in which the lynching occurred, and, among other provisions, provided a fine or imprisonment or both for any person who broke into a jail for the purpose of lynching a prisoner. Though better framed, this law was no more effective than that of Georgia. Adjoining counties were too close to obtain impartial jurors—many of the residents were participants in or sympathizers with the lynching. The penalty ​for breaking into a jail to obtain a prisoner was of little effect other than to cause mobs to seize their victims before they could be incarcerated. The most intelligent part of the bill was that which was aimed at a very vulnerable point—the taxpayers and the county treasury. This provided that the entire cost of the proceedings should be borne by the county in which the lynching occurred, and if an insufficient guard had been placed about the victim, the county was liable for damages to the next of kin of the deceased. This clause was one of the first instances where punitive damages were provided, and the principle has since been held constitutional by various state supreme courts and has acted as a potent deterrent to lynch-law. Weakness of other parts of the North Carolina statute, however, nullified this part of the act.

In 1895 Georgia sought to strengthen the act passed in 1893 by providing penalties for persons who obstructed a sheriff or his deputy in protecting a prisoner from a mob. There is no record that the added provision helped to meet the issue.

South Carolina during the same year adopted a new state constitution, in which provision was made for the removal of a sheriff by the governor when that officer was negligent in protecting a prisoner against lynching; and for damages of two thousand dollars to the next of kin of the victim from the county in which the lynching took place. The latter provision has been fulfilled ​in several cases of lynching in South Carolina and has tended materially towards checking lynching. The former provision, however, has been practically worthless. This was seen most clearly in the notorious and bestial triple lynching at Aiken in 1926. The governor can suspend a sheriff only upon indictment of that officer, and remove him only upon conviction. The sheriff at Aiken was named in numerous affidavits, not only as doing nothing to protect the three prisoners, but as an actual participant in the lynchings. The grand jury refused to indict, despite the evidence, and the sheriff retained his job.

Ohio in 1896 followed by passing an act that provided, in addition to the usual penalties, for damages to any person beaten or manhandled by a mob after being taken from an officer, of one thousand dollars from the county in which the assault took place; for damages of five hundred dollars to any person attacked by a mob and slightly injured; of one thousand dollars if more seriously injured; and of five thousand dollars if permanently disabled; and in the case of a lynching, damages of five thousand dollars to the next of kin. The Ohio statute also provided damages to any person injured by a mob in search of another, and, in the event of an innocent person's being killed in such circumstances, damages to his legal representative in the same amount as though the deceased had been the object of the mob's search. This act was amended two ​years later by the addition of special penalties for persons who attacked or entered a jail for the purpose of taking a person to be lynched.

In 1897 three states—Kentucky, Texas, and Tennessee—and in 1899 Indiana passed anti-lynching laws of various degrees of merit, largely based on the enactments already mentioned. Michigan in 1899 added a law against lynching which was modelled on the Ohio statute, but repealed it four years afterwards. Alabama in 1901 provided through her constitution for impeachment of a sheriff or his deputy who permitted a prisoner to be taken from him and lynched; and upon conviction he was made ineligible "to hold any office in this State during the time for which he had been elected to serve as sheriff." Kansas in 1903 authorized payment of rewards for apprehension and punishment of lynchers and enacted an anti-lynching measure. During recent years Kentucky, Florida, and West Virginia have given their governors authority to remove negligent sheriffs. In Kentucky's one lynching in 1926 the negligent officer was removed by the Governor under the provisions of that state's anti-lynching law.

The effect of these laws need not be judged by the number of times they have been used successfully to punish lynchers. The best laws are those that prevent crime instead of punishing it. Even the most optimistic person, however, would be compelled to admit that the history of state laws against lynching is, at best, a ​record of questionable effectiveness. The states with the worst lynching records either will not pass laws against the evil or, in those few which have such laws, find it practically impossible to enforce them, especially when the victim is a Negro. The acid test of all the assertions that the states can and will enact and enforce anti-lynching laws is this: Can the lynchers of Negroes be indicted, tried, and if found guilty, punished? The answer to date is in the negative. The Supreme Courts of Ohio, Alabama, Kansas, and South Carolina have upheld the validity of damages against counties in which lynchings have taken place, but grand juries and the lower courts, especially of states where most of the lynchings have occurred, refuse to act against lynchers even when the evidence is clear.

In brief, we are yet a long way from prompt and unbiased action against lynchers by grand juries and the courts of a considerable number of states. The extent and the viciousness of race prejudice in the lynching states make it exceedingly doubtful whether or not it will be possible for many years to come to obtain convictions of lynchers in state courts of those states when the victim is a Negro. Agitation for the passage of state laws is valuable in its educational effect, but there are certain reasons for doubting the efficacy of state laws in ending lynching within a reasonable period. The chief weaknesses of such laws would appear to be (1) that where they are most needed, the very sentiment which ​causes lynching makes enactment and enforcement of such laws impossible; (2) that juries drawn from the county in which the lynching occurred or counties near by are more than likely to have upon them relatives, friends, fellow participants, or sympathizers of the defendants who would refuse to vote for convictions; and (3) that provisions for removal of negligent sheriffs or deputies by the governor, while valuable, are nullified when grand juries or lower courts refuse to indict or convict such officers; and, obviously, there is danger in giving a governor power of removal based solely upon his own judgment as to whether or not the sheriff did sincerely attempt to protect his prisoner. In brief, state anti-lynching laws are valuable and effective in an inverse ratio to the need for them.

There is no desire to disparage sincere efforts for enactment and enforcement of state laws against the evil of lynching. For reasons already given, they have both a direct and an indirect value. Unsentimental examination of the question causes one to conclude, however, that for such states as Mississippi, Arkansas, Florida, and others of the lower South there is little hope of effective action against lynchers through this channel. Until the lyncher of any person, regardless of the colour of the victim's skin or the offence with which he is charged, can be promptly indicted, tried, and convicted, state laws in such states are an illusion—and no honest citizen can assert that they will not continue to be in ​this generation and in several to come. And, while the day when such laws will be effective is perhaps coming, there are living in those states human beings, perhaps yet unborn, who are to be the victims of the rope and the faggot.

Attempts to curb lynchings by means of federal action began about the same time as proposals for state laws against the practice. The late Senator George F. Hoar of Massachusetts, who fought valiantly against American imperialism in the Philippines, was the author of one of the first bills to give the federal Government jurisdiction against lynchers. In 1902 there was introduced in the House of Representatives a bill designed to throw federal protection against lynching around aliens resident in the United States. Up to that time in various parts of the United States mobs had lynched Italians, Chinese, Japanese, Bohemians, Mexicans, and citizens of Great Britain and Switzerland. As a result the United States Government had paid in the fifteen years between 1887 and 1901 a total of $475,499.90 in indemnities to the Governments of China, Italy, Great Britain, and Mexico; in 1903 an additional sum of $5000 was paid to Italy for the lynching in Mississippi of a citizen of that country. The bill introduced in Congress in 1902, upon which no action was taken, was designed to protect aliens and did not at​tempt to touch upon the question of the lynching of citizens of the United States.

Within recent years there has come a revival of such measures, along with the growing agitation against mob-law. Emphasis has properly been shifted in all of these measures to protect American citizens as well as those of foreign countries. Among them the bill introduced by Congressman L. C. Dyer of Missouri and backed by the National Association for the Advancement of Colored People and other organizations has received most thoughtful attention.

Before proceeding to a brief analysis of the provisions of the Dyer Bill and others like it, it may perhaps be interesting to point out some of the anomalous situations that perplex those who are seeking honestly to find some way by which the Government of the United States may protect its own citizens from lynching in those states where the local courts and officials are helpless against the mob. For example, no less an authority than the Chief Justice of the United States Supreme Court, William Howard Taft, is responsible for the statement that a federal law to punish the lynchers of aliens is constitutional and that in the failure to enact such legislation "we may well hang our heads in the face of adverse criticism";^[1] but Chief Justice Taft ​and other eminent authorities on constitutional law feel that "for lynchings of our own citizens within the jurisdiction of the State we can say to ourselves for we have no other plea, that under the form of our government such crimes are a State matter, and if the people of a State will not provide, for their own protection, a machinery in the administration of justice that will prevent such lawless violence, and a public opinion to make it effective, then it is for them to bear the ignominy of such a condition."

To the man who is interested in humanity instead of fine shadings of legal reasoning, in equal justice instead of law, such distinctions and such confessions of federal helplessness bear an ironic tinge. This is especially true when he considers that the principal victims of lynching are disfranchised by chicanery and impudent use of lynch-law itself, and are thus unable to "provide, for their protection, a machinery . . . that will prevent such lawless violence, and a public opinion to make it effective." Once again will such a man be impressed with the lack of synonymity between law as such and common humaneness.

Another anomalous situation perplexes the lay mind. The United States Supreme Court has ruled (Logan v. United States, 144 U. S. 263) that one who kills a prisoner who is in the custody of a federal officer may be punished for murder by the United States. Let us state a hypothetical case based on this decision. A citi​zen of the United States, for example, is charged with counterfeiting or the murder of a federal judge on his way to hold court in another place, or with committing some crime in a post office. He is arrested by a United States marshal, who starts with his prisoner to jail. A mob, off of government property, takes the prisoner and lynches him. The full power of the United States can be used to arrest and punish each of the lynchers for murder. But let us suppose that the prisoner took exactly one step off of government property and committed a crime not against federal law. He is arrested, not by a federal officer (for whatever consolation that may be to his kinsmen), but by a sheriff or policeman. A mob takes him and burns him at the stake. Under our present laws and constitution his citizenship even in his own country is worthless so far as federal power is concerned, either in protecting him from lynching or in punishing his lynchers.

Such elementary examples of legalistic hair-splitting are most vexing to those who are concerned with putting an end to lynching and not with debating exceedingly fine points of law. This vexation is all the more annoying when, as distinguished from those who have honest doubts as to the power of the federal Government to act in the matter of mob-law, there are those who blatantly defend lynching and, in doing so, utilize legal technicalities to prevent action against lynchers. A notorious example of such tactics was seen in the ​United States Senate in 1922 when, after the House of Representatives had passed by a vote of 230 to 119 the Dyer Anti-Lynching Bill, such Southern senators as John Sharp Williams and Pat Harrison of Mississippi, the late Oscar Underwood of Alabama, Thaddeus Caraway of Arkansas, and other senators from states where lynchings have been most numerous prevented by a filibuster even discussion of lynching. It is only fair to add that considerable aid was given to them by certain Northern and Republican senators (such as the late Henry Cabot Lodge) who were renegade to promises to their constituents to combat the filibuster. The net result of such efforts is to obscure public opinion upon an issue already obscured to the point of opaqueness. The progress that certain states boast of will never be evident until the electors of those states choose a higher type of individual to represent them, to replace those who add to a difficult situation cheap appeals to the basest of racial prejudices and passions.

Dismissing those of this class, there remain for consideration the arguments of those who honestly doubt the constitutionality of a federal anti-lynching law, however well framed, and of those who are convinced that such a law can be framed so as to be both effective and constitutional. First, there are those who contend that lynching is murder and nothing more and that punishment lies wholly and solely upon state governments for murder, whether it be committed by one or by ten thou​sand persons. In answer to those who hold such an opinion, James Weldon Johnson testified at a hearing of the Judiciary Committee of the United States Senate in 1926 in these words: "The chief constitutional objection to such legislation is that the federal Government has no more warrant to step in to punish lynching in the States than it has to prevent or punish any other form of murder or any other crime—arson, for example. I think it is safe to say that lynching is not simply murder; that it is murder plus something else. It is murder plus revolution and anarchy. It is murder plus a flaunting and overthrowing and trampling under foot of the prerogatives of the courts. The mob apprehends the victim, tries and condemns, and then executes him. That is, in committing murder the mob arrogates to itself the rights and powers of the courts."

There is also the contention that even should Lynching be regarded as a special form of murder, there is not the authority in the Constitution to give the federal government through its courts jurisdiction over the crime. This argument is met by Herbert K. Stockton of New York in a brief, the most comprehensive upon the question of such legislation, which was filed in 1926 and reprinted in the report of hearings before the Senate Judiciary Committee. Since Mr. Stockton's brief, filed on behalf of the National Association for the Advancement of Colored People, is so comprehensive, it affords the best and fullest exposition of the moot legal ​questions on which centres most of the discussion of federal anti-lynching legislation. An effort, therefore, will be made to summarize here the main contentions.

It is set forth at the outset that Congress has the power to enact such legislation through the fourteenth amendment to the Constitution and specifically through the provision which reads: "Nor shall any State . . . deny to any person within its jurisdiction the equal protection of the laws"; and under that amendment's supplementary section 5, which empowers Congress to enforce the provision quoted by appropriate legislation. Such legislation would not supersede or nullify state action against lynchers, since federal action would, under the bill's provisions, be possible only in certain contingencies; "when the State or county officers do not try to prevent or punish a lynching they are criminally liable, the county is made subject to a fine [of $10,000] and the Federal court, with its jury drawn from a broader district than the county panel, shall try the lynchers." Instead of relieving the States from the task of preventing and punishing lynchings, they are given every inducement and opportunity to act before the federal power would be operative.

United States Supreme Court decisions are then cited to establish that the federal Government has not only the right, but the obligation as well, to assure to all its citizens their rights as citizens, which include equal protection of the laws, and to prevent encroachment by ​the states or by individuals upon those rights. Lynching figures are cited to support the contention that the mobs' victims do not get equal protection of the laws of the states, that state and county officials do not try to prevent this crime as they do others, and that they do not try to punish his crime as they do other crimes. It is contended that these constitute inequality of protection, gross neglect on the part of state authorities whose duty it is to afford equal protection, and, in the failure of those officers, a failure of the state itself.

That such failure is in violation of the fourteenth amendment and that the federal Government is obligated to afford such protection when the individual states fail to do so is asserted upon the basis of certain notable decisions of the Federal Supreme Court. Among these is that in the case of Saunders v. Shaw (244 U. S. 317, 320), where the court said that "the denial of rights given by the fourteenth amendment need not be by legislation"; and, in another case, that "such an actual discrimination is as potential in creating a denial of equality of rights as a discrimination made by law"—this latter case referring to the barring of Negroes from jury duty (Tarrance v. Florida, 188 U. S. 519). The Supreme Court has also ruled, it is pointed out, that the federal Government has the right to inquire whether a state law, fair enough on its surface, has back of it prejudice that will cause denial of equal protection in its administration (Yick Wo v. Hopkins, ​118 U. S. 356). These and other decisions are cited to establish the facts that (1) equal protection of the laws as contemplated by the fourteenth amendment is not being given, particularly to Negroes, who are the principal victims of lynching; and that (2) the state is responsible for the action or non-action of each and all of its officials charged with the enforcement of the law down to "the most obscure subordinate in the State's governmental organization."

Whether or not the anti-lynching bill then being discussed was "appropriate legislation" in enforcing the Constitutional prohibition of denial of equal protection was next considered. The validity of federal action against individuals within a state whose duty it is to give equal protection of the laws, but who have failed to do so, action against them being equivalent to action against the state itself, is affirmed upon the basis of such decisions as that in Strauder v. West Virginia (100 U. S. 303, 306, 310), where the Supreme Court specifically declared: "A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws."^[2]

​That it is appropriate legislation to enforce constitutional provisions forbidding the states to deny equal protection of its laws is shown by such decisions as those in Logan v. United States, and Virginia v. Rives. In the latter the Supreme Court declared that "Congress, by virtue of the fifth section of the fourteenth amendment, may enforce the prohibitions whenever they are disregarded by either the legislative, the executive, or the judicial department of the State. The mode of enforcement is left to its discretion." And in the Cruikshank case (1 Woods Circuit Court Reports, 315) Mr. Justice Bradley declared: "It seems to be firmly established by the unanimous opinion of the judges . . . that Congress has power to enforce by appropriate legislation every right and privilege given by or guaranteed by the Constitution."

The brief contends that such decisions warrant belief in the right of Congress to pass anti-lynching legislation, in the face of the open and notorious denial of equal protection of the laws as evidenced by close to five thousand lynchings over a period of less than half a century.

The clause of the anti-lynching bill providing for punishment of lynchers who conspire with officials to lynch is justified under the legal principles applicable to conspiracies, such persons being regarded as principals, ​as in Cohen v. United States (157 Fed. 651); authority for giving federal courts jurisdiction in prosecuting individual members of mobs when state officials fail to do their duty is affirmed by decisions already quoted and especially in such cases as Virginia v. Rives. Provisions for fines upon counties in which lynchings take place are shown to have ample precedents in various state statutes and decisions of state supreme courts affirming the validity of such fines, as we have already seen in South Carolina, Ohio, Alabama, and Kansas. The validity of the inclusion of a clause applying to aliens, as well as citizens of the United States, who might be lynched is next briefly dealt with under the treaty power of the federal Government.

The brief concludes with a comparison of the decisions of the United States Supreme Court in the famous Leo Frank case (Frank v. Mangum, 237 U. S. 309, 335) and those arising from the Elaine, Arkansas, riots of October 1919 (Moore v. Dempsey, 261 U. S. 86). In the latter case the Supreme Court reversed an Arkansas court which had dismissed a writ of habeas corpus granted to Negroes who had been convicted in a trial completely dominated by a mob, making any other verdict than conviction impossible despite the evidence. The Supreme Court said, in effect, that even though a state went through all the form of a trial, if it could be shown that mob spirit against the defendants was so strong as to prejudice that court, the federal ​Government had authority to go behind the trial itself and declare it null and void—practically a complete reversal of the Supreme Court's decision in the Leo Frank case.

"The implications of this decision," the brief concludes, "are of significance in connection with such legislation as is proposed herewith, because in such a case the United States Supreme Court examines into the State court trial, and, regardless of the approval of that trial by the State court of appeal, determines for itself whether or not the proceedings were dominated by the mob, so as not to constitute due process of law. Upon so finding, the Federal court will take action directly with regard to the individuals involved so as to make good to them the constitutional guaranty under the fourteenth amendment that the State shall not deprive them of life or liberty without due process of law.

"In analogous fashion the present bill will, we confidently believe, be upheld as appropriate legislation to make good the guaranty of the fourteenth amendment to those who suffer from the unequal administration of the State laws, which now fail to protect them from the lynching mobs. Such an appeal to this legislative body, which represents all the people of this country and which is commanded by the highest law of the land to see that none of them is denied the equal protection of the laws of the States, must not fall on deaf ears."

​So short a summary of this brief necessarily means the elimination of much that would be valuable to quote. Enough has been given, however, to indicate the grounds upon which proponents of federal anti-lynching legislation base their belief as to the constitutionality of the measure now pending before Congress. Certainly there is enough foundation and more for Mr. Stockton's modest "reasonable certainty" that should the bill become law and a test case be carried to that tribunal, the United States Supreme Court will rule in its favour. As has been said, there are other honest and eminent lawyers who do not agree wholly with the reasoning of the brief quoted. Among them is Moorfield Storey of Boston, a former president of the American Bar Association, president since its formation of the National Association for the Advancement of Colored People, and one of the greatest authorities on constitutional law in the United States. In 1920 Mr. Storey wrote to Congressman Frederick W. Dallinger of Massachusetts, author of an anti-lynching bill which was later consolidated with that of Congressman Dyer, in these words:

"It has seemed to me a very doubtful question whether legislation by Congress against lynching in the States is constitutional, but I am very clearly of the opinion that it ought to be tried. I think the South expects it, and many of our Southern citizens who are opposed to lynching will welcome it. . . . A murder, in the ordinary course of things, is an offense wholly ​within the jurisdiction of the State, and if the authorities of the State do their best to prevent such offenses or to punish the offenders the United States cannot, in my judgment, interfere. If, however, the authorities do not prosecute the offenders in earnest, or if, like the governor of Mississippi the other day, when advised that a lynching was to take place, they profess absolute inability to act, then it would seem to me that the Government should step in. I hope your act will be reported favorably by the committee and that it may become a law, for I feel very sure that unless lynching of colored people is stopped we are drifting into what may well become civil war."

There would, perhaps, be a closer approach between the two groups who honestly disagree on the question of effective steps towards abolition of lynching were there not the third class, already mentioned, composed of those who wave the bloody shirt and appeal to racial and sectional prejudices in defending lynching while masking their real purpose by use of arguments regarding constitutionality and "states' rights." It would seem reasonable, however, should lynching continue, that the experiment of federal legislation be tried and the mont point of constitutionality be referred through a test case to the only authority that can finally decide it—the Supreme Court of the United States.

Such action has been recommended in various fashions by presidents of the United States from Benjamin ​Harrison in 1891, following the lynching of the Italians at New Orleans, through the list to Wilson, Harding, and Coolidge. There are various possible benefits, direct and indirect, from enactment of an adequate federal law of this nature.

Nothing would serve so effectively to lessen the present self-esteem of lynchers. It would serve notice upon them that a roused public opinion no longer approved of their deeds and was determined to put an end to their immunity.

Such a law would demonstrate to the world at large that the United States is not as indifferent to or as helpless in the face of the activities of lynching mobs as now, with justice, is thought. Arthur B. Spingarn of New York, testifying in 1920 before the Judiciary Committee of the House of Representatives of Congress, told of his experiences with this reputation as a lawless nation that lynching has given to the United States. "Personally, I have myself seen our civilization sneered at in Europe, in South America and in Mexico. Even in Turkey, I heard of a lecture delivered by a Turk, who displayed pictures of American lynchings to show that America was not a civilized nation." The honour of the United States is stained, and her pretensions to moral leadership of the world are laughed at because of lynchings and the apparent equanimity with which the ruthless murder of her own citizens is viewed by the Government of the United States. Passage and enforcement ​of adequate federal legislation against lynching would be an effective answer to such ridicule of the United States.

A federal anti-lynching law would aid those who are battling valiantly against mob-rule where that dangerous practice is widespread and strongly entrenched. With juries drawn from a wider area, and with judges who are not dependent upon the votes of lynchers and their sympathizers for re-election, there would be greater likelihood of convictions in states where there is little effective sentiment for suppression of lynching and where intimidation of courts has destroyed respect for state courts so far as punishment for lynching of Negroes is concerned, and most of that respect when whites are the victims. During the debate in Congress on the Dyer Bill in 1922 the statement was frequently made by Southern congressmen of both houses that there was no necessity for federal action, as the states were amply able to stop lynching. Let us see from the records how true this has been.

In 1925 there were eighteen lynchings. Six of the victims were taken from sheriffs or other peace officers in Southern states, four in Mississippi, and one each in Arkansas and Florida. Two victims were taken from jails and lynched, Missouri and Virginia each staging an episode of this character. One victim, in Mississippi, was taken from the court-house itself where a jury had just acquitted him on a charge of murder. Another vic​tim was lynched after a mob in Georgia had broken into the state insane asylum to obtain possession of the insane man.

In 1926 there were thirty-four lynchings. Eight of the victims were taken from officers of the law, nine were lynched after mobs had broken into jail to obtain them, two were slain in jail by mobs, and one victim in Texas was lynched by officers themselves. Five victims were taken by mobs from officers of the law in Florida, two in Arkansas, and one in Kentucky. Of the nine cases where victims were taken from jails and lynched, three occurred in South Carolina, two in Florida, and one each in Georgia, Louisiana, Mississippi, and Tennessee. One victim was slain in jail by a mob in Mississippi and one in Virginia.

In 1927, of the eighteen victims of mobs, eight were taken from peace officers (Mississippi 3; Arkansas 2; Florida, Texas, and Tennessee one each); four were taken from jails (one each in Kentucky, Mississippi, Missouri, and Tennessee); one was lynched "after he had escaped from policemen" in North Carolina; and in California one was lynched by fellow prisoners.

To summarize, ten of eighteen victims of mobs in 1925, twenty of thirty-four in 1926, and fourteen of eighteen in 1927 were taken from officers, jails, court-houses, and an insane asylum and lynched—forty-four lynchings, out of a total of seventy, where officers of the states were directly responsible. The most optimistic ​would find difficulty in terming such a record indicative of "equal protection of the law"—where the states, through their agents, were responsible for not affording equal protection of their laws in 62.8 per cent of the lynchings.

Nor is the record of the courts and grand juries much better, though indictments and convictions, compared with previous years, are more frequent. According to Monroe N. Work of Tuskegee Institute, in the World Almanac for 1927 and 1928, there were seven lynchings where indictments and convictions followed in 1925 and 1926—during which two years the National Association for the Advancement of Colored People records fifty-two lynchings. Mr. Work reports in the seven cases seventy-five indictments, of which thirty were followed by convictions. The sentences imposed by the courts upon these thirty lynchers were as follows: five were given suspended sentences, one was given thirty days in jail, and fifteen were sentenced to prison terms ranging from six to eight years—all these in 1925; in 1926 one lyncher was sentenced to life imprisonment and eight to terms ranging from four to twenty years for lynching a white man in Georgia.

Against this discouraging picture, encouraging only by comparison with previous years, should be set in fairness the record of lynchings prevented. Mr. Work reports that in 1925 there were thirty-nine such instances, seven in the North and thirty-two in the South. ​Action taken consisted of removal of the prisoners, augmenting the guard, or using armed force to repel the lynchers, of which there were thirteen cases. In 1926 thirty-three lynchings were averted, four in Northern and twenty-nine in Southern states.

Federal action may be necessitated by the aftermath of the Ku Klux Klan. Though the peak of this movement seems to have passed, the racial and religious hatred and bigotry that it stirred up and the organization of the most intolerant, criminal, and dangerous elements of various communities will undoubtedly make themselves felt for many years to come. During the debate in Congress of the Dyer Bill in 1922 the constructive criticism was made that the measure became effective only when the victim was killed. This led to the insertion throughout the bill, in addition to the words "for the purpose of depriving any person of his life," the words "or doing him physical injury." The Klan and the spirit it represents have led to situations of virtual armed camps in states like Alabama, where hundreds of men and women, white and Negro, have been lynched, flogged, mutilated, tarred and feathered, and otherwise maltreated by mobs. The Birmingham News in 1927 repeatedly declared, as did other newspapers, such as the Montgomery Advertiser, that the situation had grown so serious from such outrages that they "constitute the gravest menace now known to this country. Anarchy is anarchy no matter where it raises its ​head." As the federal government was obliged after the Civil War to drive the Klan and those who adopted Klan methods out of existence, there may come the necessity of similar action to save the lives of its citizens, white and coloured, during these later years.

Though notable progress has been made during recent years against mob-law, the menace to the United States is yet so serious that it is almost impossible to speak in too strong terms regarding it. Perhaps even the most backward states of the present time may be able to find a means of checking the mob. If they do not, it seems inevitable that federal action will be imperative to save these states from themselves and to save the more orderly sections of the country from contamination. Whether that federal action, if it comes, takes the form of a law or a constitutional amendment also remains to be seen.

Lynching—rule by rope and faggot and tar-bucket instead of by orderly and civilized processes—has for too long been a curse to America and an affront to decency and humanity. Against it is needed a larger, more active, more valiant, and more articulate public opinion to restore sanity, truth, and the reign of law. If that organized opinion and action are not forthcoming, sad and terrible days, not only for the lynching states, but for all of America, seem inevitable.