It is generally thought that Lynching was a tradition in America, in the Deep
South, one used against blacks. Doctor
Murphey has researched the issue and found that
it was much more general and that it was not directed at blacks in particular.
He has been to the sources and gives references. This is always a good sign.
He does not say that the black lynching story is propaganda but that is where he
leads.
The
History of Lynching
LYNCHING: HISTORY
AND ANALYSIS:
A LEGAL STUDIES MONOGRAPH
Part I: The History
of Lynching
Introduction
This monograph
results from an interest the author first developed almost fifteen years
ago. As part of the preparation for a book on the history of modern liberal
thought, I read the volumes of the New Republic from the magazine's
inception in late 1914 to early 1985. Until the early 1930s there was an
annual editorial telling the number of lynchings in the United States.1
Two things were
surprising about the statistics. The first was that lynching declined
year-by-year, virtually disappearing by the end of the 1920s before
increasing temporarily in the early 1930s under the impact of the
Depression. By the middle of the 1930s the New Republic decided
there was no longer occasion for an annual report. Lynching's early demise
was contrary to the naive impression that it had continued until it was
beaten back by the Civil Rights movement after World War II. The second
surprising aspect was that lynching had not been confined to the South and
simply to black victims. Certainly all Americans know of the "stringing up
of desperadoes" in the West; but I had not put the Southern and Western, and
even Northeastern, phenomena together. In common with most Americans, I had
thought that lynching was preeminently an act of racial viciousness.
These surprises
created an interest that caused me to put "a study of lynching" on at least
the far back burner of my list of intended projects. Over the years, it has
worked itself forward, where now I have undertaken it with far more interest
than my initial curiosity foretold.
Why did so
morbid a subject grow in interest? Not mainly because of the voyeurism and
revulsion it stimulates. There are many books on lynching, and any one is
enough to assuage a reader's appetite, such as it may be, for revisiting
some of the worst cruelties of the past. That by itself would have turned me
away. What has caused my interest to grow has been a realization that
lynching raises important unresolved historical issues that are significant
in the context of today's social tensions, and a further realization that it
highlights some very genuine questions about the nature of law and justice,
ideals and human action.
Until quite
recently, I didn't think the article would have a place in the series of
studies I have been making of episodes in American history for which
Americans of the past are today criticized so severely. That series has
studied the historical treatment of the American Indians, the World War II
relocation of the Japanese-Americans from the west coast, the Hollywood
Blacklist, what happened at Kent State, and the J. Robert Oppenheimer case.2
Knowing that on each subject there was an abundance of alienated literature,
I sought to answer the question of what a careful scholar, conscientious
about truth, would say on the subject if he did not approach it with a
preformed animus against mainstream American society.
The phenomenon
of lynching seemed so clearly indefensible that it offered only a curious
side-show. It was a foregone conclusion that lynching demonstrated a
viciousness for which nothing can be considered in exculpation. Those who
engaged in it were clearly beyond the pale; and I didn't begin my study with
any expectation that I would find otherwise.
Needless to
say, I have not come to a full reversal of that initial impression. Many
lynchings were simple hangings, of people who had committed serious crimes
and might therefore be considered to have "gotten what they deserved." But
others carried sadism to the outer limits, where fingers and toes were cut
off a knuckle at a time, the live victim was castrated, and the person was
roasted alive, having only charred stumps for legs by the time he died. What
civilized person would remotely want to defend that? In countless ways
throughout history and into our own time, human beings have found it within
themselves to do the most outrageous things to other human beings, often
right alongside much that is decent and good. An important thesis of my book
Understanding the Modern Predicament is that humanity has risen
only partly from prehistoric primitivism.3 Taken in its entirety,
we must marvel at having been born into such a species, to spend our
existence as part of such a context. We would throw the whole thing over if
it weren't for existential affirmations springing from life itself: the
lovely sparkle in our wife's eyes, the delights of our grandson's happy
chuckle, and the rising of the mist from the damp logs along a Colorado
stream on a summer morning.
I won't seek to
defend lynching. But I will ask certain questions of it:
What place does
it occupy, when seen in perspective? How does it rank among mankind's
enormities? How even does it measure up when compared to the outrages to
which lynching was often a response? And in the context of a broader
perspective, what does it tell us about Americans of earlier generations?
. Was it unique to American history?
. What caused it
to disappear? Were "reform" and the "Civil Rights movement" the reasons for
its demise, or were these simply the late-arriving midwives to a deeper
historical improvement?
.Was lynching
primarily--or even significantly--racist? Did it manifest, as so many have
contended, a desire born out of hysteria and meanness to "keep blacks in
their place"? To Americans today, anything but an affirmative answer seems
perverse; but how does the conventional answer hold up as against the heavy
weight of counter-evidence?
. What do
vigilantism, popular justice and lynching tell us about the nature of
justice and of law? And do they contain, even in their cruelty and
imperfection, any virtues by which we should measure an organized system of
law and police?
. Finally, what
are we to think of the chronic disjunction that exists in virtually all
areas of life between people's appreciation of ideals, principles and law,
on the one hand, and a desire by acting men for a more immediate cutting
through of means to ends, on the other? Lynching is just part of a broader
fact: that the loyalty to ideals is only partial at best; that people at all
times and places find frequent reasons to depart from them, often out of
venality and hypocrisy, sometimes out of an indifferent preference for what
is more convenient, and sometimes in the service of what the actors
themselves consider a higher good.
Individually
and together, these are formidable issues. They show that there is more to
the subject than is found in a simple denunciation of earlier Americans.
With the other subjects in my series of studies I have found reason to deny
the grounds for the alienation. I wouldn't entirely do that so far as
lynching is concerned, but my study does reveal that there is a complex
human context to be understood. In that context, earlier Americans look far
less sadistic and racist than so much alienated writing would give us to
believe.
We will take up
each of these questions later in this monograph. But first it will be
important to recount the facts about lynching itself, since the analysis
will presuppose that historical background.
Definition of "Lynching"
There are
homicides and punitive acts of many kinds, so in order to know what we are
talking about in a discussion of lynching we need a definition that
differentiates it from riots, assassinations, murders, legal executions and
other killings. The intention is not to split hairs, but to limit the
subject under discussion and to match the commonly understood meaning of the
term. That common usage uses "lynching" to denote something that meets all
of the following criteria. It must:
. Be an
execution. The word "vigilantism" is broader, and often involves lesser
punishments. This element reflects a change in the meaning of "lynching"
over time, since early in American history the word referred mainly to
floggings.
. Be done outside
the processes of established law and court procedure or military action.
When the term "legal lynching" is used, it departs from this criterion
enough to encompass criminal punishment that is conducted through legal
institutions but by a violation of procedural or substantive norms.
. Be committed by
several or even many people. "Lynching" is used to refer to group action
even though a single individual might act consistently with the other
criteria. If killings by one or two individuals had come to be included in
the common meaning, the word would have lost much of its clarity, since in
many cases it would be almost impossible to know whether the other criteria
(such as community approval and a community-oriented motive) were present.
. Be a response
to a perceived outrage. In many lynchings, the relation to a serious wrong
had a less specific aspect than a criminal charge in a court of law would
have. By their very nature, lynch mobs were incapable of weighing niceties
of proof and exculpation. But there was another equally important reason for
them to disregard those niceties: that the mob acted on the local
community's intimate knowledge of the individual. If he was known locally to
be vicious or a no-good, that was justification enough for brushing aside
"technicalities" when there seemed sufficient reason to think he had
committed an outrage. The local community very deliberately did not want to
become wrapped up in fine-spun distinctions that it saw as pettifoggeries
and that would deny it the immediacy of justice.
. Be motivated by
a desire to vindicate the moral sense of the community (or of that part of
the community that counts so far as predominant public opinion is
concerned). The community was almost always a local one, most often in a
rural or small-town setting.
. Enjoy general
public approval in fact, at least in the local community. The approval can
be apparent in a number of ways, such as by prior announcement of the
lynching in the press, the involvement of hundreds or even thousands of
people, the condonation by or even participation of public officials, the
public display of the body, and the refusal by juries or judges to punish
those who did it.
. Have as its
target a specific person or persons, rather than being an indiscriminate
lashing-out. The word "lynching" isn't used to encompass a riot, even though
a lynching can occur in the context of one.
The criminal
codes of some states have provided that to qualify as a "lynching" the mob
action must have involved taking the person from legal custody. In many
cases, mobs stormed the jail and took a prisoner out of his cell or even
killed him there. When this is made part of the definition, the term becomes
narrower than general usage today. One of the reform measures in the late
nineteenth century was to make local governments liable for penalties if
they allowed the lynching of prisoners in their custody. It is likely that
this aspect of reform was what introduced the criterion of "taken from legal
custody" into the legal definition of lynching in those states.
Lynching in
the United States before the Civil War.
There have been
a surprising number of men and places named Lynch in the United States,
Ireland and England in recent centuries. The word "lynching" has at various
times been traced to some punishment inflicted by or at each of them. James
Elbert Cutler reviews these origins in the second chapter of his book
Lynch-Law, although (for reasons he doesn't always make clear) he
considers most of the explanations fanciful.4
The origin that
has gained greatest acceptance centers around Col. Charles Lynch of Bedford
County, Virginia, a Quaker and Colonel of Militia. The history that is
related is that during the Revolutionary War a good many thieves stole
horses and sold them to the British army. The only court for the trial of
felonies was two hundred miles away in Williamsburg. In these circumstances,
the Colonel's home was by local consensus declared a courthouse. The Colonel
served as presiding judge, assisted by three neighbors. The forms of law
were followed, and if the accused was convicted he was sentenced "to receive
the Law of Moses, which is forty lashes less one, on the bared back." Since
most of the thieves were Tories loyal to Britain, a convicted man was made
to shout "Liberty forever!" If he refused, he was hung by his thumbs until
he complied. After the war, the Virginia legislature ratified all this,
enacting "Lynch's Law" granting Col. Lynch and his associates immunity from
prosecution and civil suits.5
If, however,
this was the true origin of the word "lynching," it doesn't mean that there
were not forms of popular, extra-legal justice administered at earlier times
under other names. Shay explains that during the colonial period informers
were seen as "in the service of the crown." When the informer was
discovered, his fellow townsmen would whip him, tar and feather him, or
"ride him out of town on a rail." Someone who inflicted such a punishment
was known as "Squire Birch."6
A common
practice in New England, Shay says, was for "warners-off" to order a
newcomer out of town within five days if his credentials as to "character,
religion, goods and other local requirements" didn't appear satisfactory. He
faced Squire Birch- type punishment if he disobeyed. Shay tells us, too,
that summary punishment was applied to a wide variety of offenders:
misbehaving Indians, wife-beaters, chronic drunks, sometimes even
non-churchgoers and tobacco smokers.7
Cutler tells of
popular justice administered against Indians in Pennsylvania in 1763 by
Scotch-Irish "Rangers," and says that this was neither an isolated nor the
earliest instance.8
The period of
the American Revolution was one of great turbulence in most communities.
Tar-and-feathering was widely used, and the subject was sometimes put to
death.9
Cutler says the
first known use of the term "Lynch Law" was in a book in 1818 (some forty
years after Col. Lynch administered his reprisals). A book published in
London six years later told of "regulating" in Illinois, Indiana and
Kentucky, with bands inflicting punishment. Cutler tells us that "summary
and illegal methods of punishing offenders were known under various names
between 1780 and 1830." An author of that time wrote that "if a man, whom
the public voice has proclaimed a thief or a swindler, escapes justice for
want of a legal proof of his guilt, though the law and a jury of his fellow
citizens have acquitted him, ten to one he is met with before he can quit
the neighborhood, and, tied to a sapling, receives a scourging that marks
him for the rest of his life." An author talking about the frontier in
Kentucky said that if a second punishment became necessary both the man's
ears were cut off.10
In 1834 a crowd
in what later became Iowa formed a popular tribunal with a jury of twelve to
try a man for murder. After he was convicted, the citizens made arrangements
to hang and bury him. One was named acting sheriff, and three others
collected money to cover expenses. Niles' Weekly Register reported
that "the whole proceedings were carried on with the utmost regularity and
good order." It was at about that time that President Andrew Jackson gave
lynching presidential approval by advising Iowa settlers that it was all
right to lynch murderers.11
In 1835 in
Vicksburg, Mississippi, the townspeople turned against the gamblers who
dominated the city. A "great mass meeting of indignant citizens," according
to Shay, led to a crowd's surrounding a tavern, which in turn led to a
shoot-out with the gamblers. After a local doctor was killed in the melee,
five of the gamblers were beaten and then hung in doorways. Their bodies
were left there for twenty-four hours before they were taken down and
buried.12
Animosity and
conflict increased in the United States during the thirty years preceding
the Civil War. Where slavery existed, the punishment of slaves became more
frequent and severe, although Cutler says the cases were sporadic and
isolated. "The most important thing...is the tendency...toward less reliance
on legal procedure and toward greater readiness on the part of the people to
take matters into their own hands. The newspapers in the fifties not only
frequently excused summary procedure but often openly advocated it."13
In 1849 in the
Gila River valley in what is now Arizona a murderer was tried by a popular
tribunal consisting of an ad hoc judge and jury and was executed by
a firing squad chosen by lot. There will be more about this sort of frontier
tribunal in the section on lynching in the West.14
Lynching as
execution was already common in Kansas in the 1850s. Cutler quotes a New
York Tribune correspondent in 1858 that "There is a very general
disposition to pass over the helplessly useless forms of Territorial law and
corrupt Federal courts, and try these parties (i.e., horse-thieves) by Lynch
law." To this were added lynchings that stemmed from the border wars that
flared before the Civil War. In November 1860 militant abolitionists in
Kansas hung two men and shot another for returning a runaway slave to his
owner in Missouri.15
The United
States after the Civil War: Overall.
Statistics
about lynchings (now referring exclusively to executions) must be taken with
caution, since there is little guarantee an accurate count was made. Most of
the published statistics were kept from the early 1880s onward, most notably
by the Chicago Tribune in a compilation published annually on
January 1. Cutler cites figures from the New York Times for the
three-year span 1871-3, but warns in a footnote that "particularly in the
case of lynchings in the West they are doubtless incomplete."16
We can at least
arrive at a rough impression of magnitude. The 1871-3 figures show 48 people
lynched in the South, 17 in the West, and ten in the Northeast (figures that
seem quite low in light of the facts we will be reviewing). As to the later
period, Cutler took the Chicago Tribune statistics and adjusted
them for errors he found by checking the underlying news reports. His
conclusion was that during the 22-year span between 1882 and 1903,
inclusive, a total of 3,337 people were lynched. During that period, the
numbers per year varied between a low of 97 and a high of 235. Two years
stand out as having had considerably more than others: 1884, which Cutler
says is explained by vigilante activity in Montana and Colorado; and 1892,
attributed to the lynching of blacks in the South. He observes that there
was "a general increase in the lynching of negroes from 1882 to 1892, and a
general decline" thereafter. A "general but irregular decline in the
lynching of whites" began in 1884, eight years earlier. In the West where
mostly whites were lynched, the main provocations were murder and theft; in
the South where lynching was mainly of blacks, the most common reasons were
murder and rape. As to race, the following comparisons apply: In the South,
567 whites, 1985 blacks, and 33 others; in the West, 523 whites, 34 blacks,
and 75 others; in the Northeast, 79 whites, 41 blacks, and no others. In
all, there were 1,169 whites, 2,060 blacks, and 108 others put to death. As
lynchings continued they became increasingly cruel, with torture and burning
more frequent, even though such cases were few in number compared to hanging
and shooting. (The cruelty was, of course, not really new; the earlier and
contemporaneous cutting off of ears, and floggings with as many as 200
lashes, show that the age didn't shrink from inflicting pain.) It may
surprise us that of the total who were lynched, 63 were women, of whom 40
were black and 23 white.17
Cutler made a
meticulous analysis of this data to determine whether there were
correlations between the number of lynchings and such factors as (a) the
proportion between whites and blacks in a community; (b) the percentage of
foreign-born; and (c) the percentage of illiterates (as a measure of the
cultural level)-- but he found no meaningful correlations. He concluded that
"it is probably true that the distribution of lynchings is largely affected
by entirely local conditions, conditions which cannot be represented by
statistics." We should take care to note, too, that the enormous increase in
the population of the United States, with its impact on per capita figures,
isn't taken into account by a citation of raw numbers. Neither are the
comparative amounts of crime at a given time and place, or on a per capita
basis. Cutler realized the importance of such facts and attempted to gather
crime statistics, but he didn't find a practicable way to do it. Ideally, a
number of other variables should be quantified intelligently for sake of
comparison, but cannot be, either because the facts aren't available for
that time or because they would be virtually unquantifiable in any case.
These would include such things as the presence, competence and honesty of
an established legal system; the strength of a sense of local community, of
an ethos of "honor," of feelings of independence from government and of
distance from external authority; etc.18
In 1919 the
National Association for the Advancement of Colored People (NAACP) published
a study of lynching for the thirty-year period between 1889-1918. A
comparison with the overlapping data from the Chicago Tribune's and
Cutler's analyses shows important differences. For example, for the year
1889 the latter show 176 people lynched and the NAACP shows 175-- virtual
agreement; but for 1890, the former show 127 or 128, while the NAACP shows
only 91--a considerable difference. For the most part, the NAACP figures are
lower than the others. Since the NAACP study tacks on an additional 15
years, it is worth noting that for those years there is a reported total of
1,068. Of these, 124 were of whites and 944 of blacks.19
Robert L.
Zangrando cites figures for the much longer period of 1882-1968 in his book
The NAACP Crusade Against Lynching, 1909-1950. Again, his
statistics, which he reports were given to him by the Tuskegee Institute,
differ somewhat from the other two lists where they overlap. His total
figure for 1890, say, is 96, with 11 being white and 85 black. The NAACP's
report of 91 was based on 3 whites and 88 blacks. So we again have reason to
take the specifics with caution. Just the same, the order of magnitude is
indicated by his 87-year total of 4,742, of which 1,297 were white and 3,445
black. Of equal significance is the declining numbers shown over the years:
prior to 1902, there was only one year (1890) with less than 100; prior to
1923, only one year ((1917) with less than 50; prior to 1932, no years with
less than 10. But after a brief increase in 1933, 1934 and 1935, there were
always less than ten, and the list dwindles slowly to zero. In effect,
lynching ceased to be a major phenomenon by the turn of the century, and had
pretty much come to an end by the mid-1930s. If, too, it were seen on a
per capita basis in light of total population, the decline would be even
more dramatic. (The population of the United States doubled from 30 million
in 1860 to 60 million in 1890.) The decline came first in the West and
Northeast, and soon thereafter in the South.20
The decline was
accompanied by a vast change in public sentiment. Frontier conditions, the
backwash of the unspeakable carnage of the Civil War, the savageries of the
Indian wars, and the earthiness of a mainly agricultural society all
combined in the second half of the nineteenth century to produce an
insensitivity to pain and a cheapness of life that is incomprehensible to us
in the much more settled and urban civilization a cemtury and more later
(which is something we can still say about the mainstream of American
society despite the rising barbarism that threatens to swamp it). Richard
Maxwell Brown tells how "as late as 1891...in the frontier community of
Rawlins, Wyoming, a leading citizen, Dr. John E. Osborne--a future governor
of Wyoming--participated in the vigilante hanging of the ferocious bandit,
George (Big Nose) Parrott. The next day Dr. Osborne 'skinned...George and
cut away the top of the skull, in order to remove the brain. The skin was
tanned and made into a medical instrument bag, razor strops, a pair of
lady's shoes, and a tobacco pouch. The shoes were displayed in the Rawlins
National Bank for years.'" Those were rough and ready times, and the fact
that the shoes were accepted objects of curiosity for so long shows that an
absence of empathy was part of the community ethos.21
Lynching has
long-since died out, but press reports for 1993 are reminders that people in
various contexts, with varying justifications, express violent collective
disapproval. An Associated Press report on July 13, 1993, told of the arson
burning of the house of a man in Washington state; he had just been released
after serving a mere 18 months for the statutory rape of a ten year old
girl, and there had been an angry rally of residents. Another Associated
Press report three days later told that a crowd of 25 women and children in
Chicago chased a man and beat him to death after he "grabbed a woman's purse
in a high-crime neighborhood." A New York Times News Service story on
October 23, 1993, told of the attack that was made on Fidel Lopez, an
immigrant from Guatemala, during the 1992 Los Angeles riot: "Lopez was
dragged from his truck and beaten senseless by a mob...His forehead was
slashed under the blows of a stereo speaker. His left ear was nearly
severed. His genitals were spray-painted black, and his body was doused with
gasoline, apparently for the purpose of setting him afire. A black preacher
threw his body upon Lopez's and saved his life." The legal aftermath showed
official condonation: the main attacker was convicted only of "misdemeanor
assault." And the National Right to Work Newsletter for October 1993 shows a
picture of a Wyoming union official wearing a t-shirt with the words "Scab
Hunter" and the picture of a fist gripping a revolver. The picture
accompanies a report that in West Virginia "on July 22, an unidentified
sniper took aim and fired a bullet into the base of Eddie York's brain."
York had been "working in West Virginia's coal fields during a strike." It
would appear that no statistics are kept on all of this, which means that
such incidents are lost in the realm of the "anecdotal." But they must be
kept in mind when we seek to place the historic phenomenon of "lynching"
into perspective. 22
The United States: the West both before and after the Civil
War
The frontier
conditions of the American West make it likely that any statistic that tells
the number of lynchings is stating only a minimum, without assurance about
what the upper limit might have been. Subject to this caution, we note that
the Time-Life Books' volume The Wild West says that "by the end of
the [nineteenth] century, Western vigilantes had put some 700 alleged
criminals to death."23
Lynching was
common in the West before the Civil War, which means that the New York
Times figures for 1871-3 are for a relatively late period in the
process. They show five in California, two in Montana, two in Nevada, two in
Nebraska, four in Kansas, and two in Colorado. Cutler's table reports 632
for the still later 22 years between 1882 and 1903. Of these, 523 were
white, 34 black, and 75 of other races.24
The historian
Hubert Howe Bancroft devoted two volumes of his work, amounting to 1500
pages, to the West's "popular tribunals." John W. Caughey says that "the
frontier avengers commonly punished by whipping. Thirty-nine lashes...were
the most favored number, but sometimes they applied 75 or 100 or even 200."
He adds that they doubted that a whipping would deter a criminal, and
therefore branded him or cut off an ear to make him recognizable. But the
punishment was often death, as is apparent when Caughey says that
"throughout the diggings [in California] the miners meted out off-the-cuff
trial and punishment. In the performance in 1849 that gave Hangtown its
name, in the sadistic execution of Juanita in Downieville in 1851, and in a
hundred other cases they, as Bancroft put it, left 'the quiet oaks tasselled
with the carcasses of the wicked.'"25
The same
description could just as well be applied to Kansas in the 1860s. Caughey
quotes from the Kansas Historical Society collections: "In the early days
[the old oak bridge over the Neosho River at Council Grove] furnished a
convenient scaffold from which to drop those sentenced to death by the court
of Judge Lynch, which often held sessions here. The last execution to take
place here was during the winter of 1866-67. Jack McDowell was a noted
horsethief and outlaw from Missouri...." An 1870 book by Fitz Hugh Ludlow
reports that in Atchison, Kansas, a crowd of almost 2,000 men, women and
children watched the trial and hanging of a man who (with a companion who
was hung two days later) had terrorized, beaten and robbed a farm family.
Shay says that in Idaho "men and women came great distances to witness the
executions of five, ten, and even twenty robbers and murderers."26
"Vigilance
Committees" were common and were organized to varying degrees. Shay says
that in 1864 the New York Times reported that they existed
"throughout the mineral territories." Richard Maxwell Brown reports 19 such
movements in Kansas between 1858 and 1889. The best known and perhaps
largest were the San Francisco Vigilance Committees of 1851 and 1856. The
1856 movement grew in membership to between 6,000 and 8,000 members, and was
dominated, Brown says, "by the leading merchants of the city." A gambler
shot and killed the U.S. Marshal in late 1855, but the gambler's trial
resulted in a hung jury. When the local newspaper ran stinging editorials,
its editor was shot dead. The leading merchants immediately organized the
vigilance committee and hung the two killers. Within a three-month period,
it hung two more and expelled 28 others, breaking the back of the corrupt
political machine that had controlled the city. The Committee held a grand
parade, disbanded, and turned itself into a political party that governed
San Francisco for the next decade. Further south, Los Angeles was a far
rougher cow town, which had figuratively "a murder a day." There, the
lynchings "far exceeded" the much tamer actions of the San Francisco
committee, according to Caughey. In one instance, the city's mayor resigned
his position so that he could head a lynch mob, which stormed the jail to
remove and then hang an inmate. (When the inmate objected to being hung by
Mexicans, the Americans in the crowd took the rope and did it.)27
Brown tells us
that in 1884 a "vigilante movement of northern and eastern Montana" executed
35, and that between 1880 and 1896 a movement in San Saba county, Texas,
lynched 25. He says there were major vigilante movements in Las Vegas,
Socorro (New Mexico), Seattle, northern Nebraska, southern Missouri, the
Creek Nation (in what is now Oklahoma), New Orleans, Tennessee, and Wyoming.28
A thoughtful
article by UCLA history professor Roger D. McGrath in the January 1994
Chronicles gives a graphic picture of popular justice in two mining
camps, Aurora, Nevada, and Bodie, California. At their height, each town had
more than 5,000 inhabitants and "contained dozens of saloons and brothels,
and produced gold and silver bullion worth a billion in today's dollars."
And yet, contrary to the perception Hollywood has created for twentieth
century Americans, there was "far less crime and far fewer innocent victims
than America has today...A statistical comparison of these rowdy mining
camps with modern American cities demonstrates that today's cities, such as
Detroit, New York, and Miami, have 20 times as much robbery per capita." He
says that "women, often the target of criminals today, suffered only rarely
from violence in Aurora and Bodie. Prostitutes bore the brunt of the little
violence that did occur." There was so little crime, McGrath says, because
the respectable citizens defended themselves. Homeowners and merchants went
armed. And "when an innocent victim was shot down in cold blood, only once
in Aurora and once in Bodie, then the response of the citizenry was
immediate and took the form of vigilantism...Contrary to the popular image
of vigilantes as an angry, unruly mob, the vigilantes displayed
military-like organization and discipline...They did what they thought they
had a right to do, defend their community."29
The United States: the South after the Civil War
Several factors
are particularly relevant to understanding the lynching in the South between
the end of the Civil War and the virtual disappearance of lynching after
1935:
1. The South
lived through the aftermath of one of history's most horrific wars. This
aftermath took the form of chaos and a low-grade simmering conflict, both
because of the devastation and dislocation inherent in a losing military
struggle and in the emancipation of a large slave population, and because of
the military
Reconstruction that imposed hostile rule on the Southern
states.
Thomas D. Clark
and Albert D. Kirwan say in The South Since Appomattox that
"southern soldiers found impoverished and exhausted communities with no
employment to offer: their homesteads destroyed, their farms devastated,
their families in distress." They continue: "To the material destruction
must be added the social disorder. Emancipation of the slaves had for the
time demoralized the labor system...More portentous than property
destruction was the loss in human resources. A quarter-million of the
youngest and ablest men of the region had their lives prematurely snuffed
out, and countless others were maimed in body and spirit."30
2. Much of the
South was at the same time in a frontier-like economic and social condition.
Clark and Kirwan cite a startling statistic: "For at least two decades
following the Civil War the South was still frontier country...Vast areas of
the region's landed domain remained untouched...Only 13 per cent of the
entire acreage [was] open to cultivation. Not more than five per cent of
this available land was cultivated annually." Much of the land was covered
by "primitive forests."31
3. War and
frontier-like conditions produced a cheapening of life. To understand this
dehumanization, it would be necessary to put oneself into the conditions of
the time to an extent that is virtually impossible for us today.
4. The white
population, despite its defeat, possessed a fierce spirit made up of several
reenforcing elements: of localism; of community; of defiance of (and, later,
freedom from) external authority; of a tradition of independence and
self-sufficiency; of "honor" as a cultural system calling upon each man to
defend himself and his family and community; of quiet despair over defeat
and of determination about the imperative to reestablish as quickly and as
securely as possible the foundations of civilized order.
As to the
latter of these points, many twentieth century writers, speaking in a
"politically correct" tone in keeping with
Americans'
all-encompassing and yet mentally very narrow egalitarianism, deride white
Southerners as having wanted to "keep blacks in their place" and to
"maintain white supremacy." Here, their ideology blinds them. They fail to
see two things that should be obvious:
a. Most conspicuously, civilization itself, with all that it
entails for everyone involved, white and black together, could not be
restored and maintained if the white society were swamped by that of
millions of people who had just emerged from slavery, with all that that
entailed. Although this is a truism, it had no appeal to the radical
Reconstructionists in Congress; and their blindness to it made much worse
the tragedies that followed the war.
b. What is not so obvious, but must have been vitally
important to Southern whites, is that the civilization of the South--meaning
the white civilization that had existed before the Civil War and that had
its roots in Europe--would not have been willing to submerge itself in an
ocean of black culture and thus cease to exist, even if the blacks
had on the whole been at a comparable level of education and
culture. The white South had not lost its will to exist. Because mainstream
Americans in the late twentieth century largely have lost a will to
maintain a nation based largely on their own identity, this is something our
contemporaries are unwilling to understand. To declare the white South's
will to exist "racist" is simply to declare hostility to a given people and
culture.
5. Of course,
one cannot overlook the fact that the defeated South contained the millions
of newly-freed blacks, who at first maintained the habits of discipline that
had been inculcated into them during slavery, but who, as time went on and a
new generation emerged, began to lose those habits. E. Merton Coulter, in
his The South During Reconstruction, 1865-1877, writes that
"slavery left the Negro illiterate and untrained for the responsibilities of
freedom, with such weaknesses as lying and thieving exaggerated. He loved
idleness, he had no keen conception of right and wrong, and he was
'improvident to the last degree of childishness.'"32
A concomitant,
of course, was an overflowing of black crime, much of it petty but a great
deal of it so serious as to amount almost to a reign of terror. In 1901 a
college president in North Carolina, George T. Winston, wrote of "a whole
community...frenzied with horror." In 1893 while sentencing a young black to
death for murder, a judge in Georgia told the defendant that the black race
"has many noble men and women who are exemplars in living upright, honest
lives," but that "I regret to notice that members of your race commit so
many atrocious crimes, particularly among the younger class, some of which
seem to be extremely vicious and hard-hearted." Since these may seem merely
self-serving observations by whites, it is important to note that the black
leader W. E. B. DuBois spoke of "a class of black criminals, loafers, and
ne'er-do-wells who are a menace to their fellows, both black and white." In
his book Racial Violence in Kentucky, 1865-1940, George C. Wright
reports that "when investigating lynchings in the early 1900s, Ray Stannard
Baker, an 'enlightened progressive,' clearly blamed Afro-Americans for the
lynchings resorted to by whites. In both the North and the South, he said,
'I found that this floating, worthless negro caused most of the trouble.'
Their crimes were marked by an almost 'animal-like ferocity.'"33
6. No external
authority weighed on the members of local communities. During
Reconstruction, the South struggled against the overpowering external
authority of the national government; then for many years after that there
was no outside pressure from the national government and almost none from
state governments, with the result that local communities had almost
complete autonomy to act as they wished. Their citizens felt they could act
with impunity so long as local sentiment approved. A lynching announced in
advance by the newspapers, attended by as many as 20,000 people,
participated in by elected officials and in effect ratified by them
afterwards both because they agreed with the prevailing opinion and because
they wanted to be reelected amounted, really, to the most direct and
primitive expression of democracy. There was no external authority,
governmental or intellectual, to tell the great majority what it ought to do
with its autonomous power. (Ironically, this total local sovereignty is
similar to what Lenin had in mind for a "communist" society after "the state
had withered away." In State and Revolution Lenin wrote that "only
communism renders the state absolutely unnecessary...We are not utopians,
and we do not in the least deny the possibility and inevitability of
excesses on the part of individual persons, nor the need to suppress such
excesses. But...no special machinery, no special apparatus of repression is
needed for this; this will be done by the armed people itself, as simply and
as readily as any crowd of civilized people, even in modern society, parts a
pair of combatants or does not allow a woman to be outraged.")34
In the South
the factors we have listed came together to form a society in extremis,
but containing within itself a life-force prepared to defend its right to
live. At first, the most obvious collective violence struck at military
Reconstruction and black militias. The (first) Ku Klux Klan, led by the
"famed Confederate cavalry leader Nathan Bedford Forrest," was organized in
direct response to Reconstruction, Clark and Kirwan tell us. They say that
"as the radical program unfolded, Klan aims were directed not at enforcing
the law but at its frustration. It sought to accomplish its purpose by
suppressing Negro militia units and frightening Negroes from support of the
radicals." Later, it reflected a struggle for existence until society could
be reestablished and had had time to rise to a level at which the impulses
to vigilantism would slowly die out. That largely occurred within 35 years,
but took an additional 35 years to be complete.35
Most authors
consider the period between 1885 and 1900 the high-point of lynchings, but
in his book on racial violence in Kentucky George C. Wright disputes this:
"My figures show that more lynchings occurred in the fifteen-year period
from 1865 to 1880 than during any other fifteen-year period, even the years
from 1885-1900, which most scholars and contemporary observers called the
heyday of lynching." He cites Richard Maxwell Brown as mentioning "over 400
Klan lynchings" between 1868 and 1871," and adds that "as astonishing as it
is, [this] greatly undercounts the lynchings that took place. More than [sic]
one- third of the total number of lynchings that occurred in Kentucky (117
of 353) happened between 1865 and 1874."36
There were
important episodes that contradict the usual image of southern
white-on-black lynching. Vigilante justice was meted out liberally in the
Ozarks from 1839 onward without regard to race. Mary Hartman and Elmo
Ingenthron have written Bald Knobbers: Vigilantes on the Ozarks Frontier,
and say that "it started in 1839 when thirty-six Cane Hill, Arkansas,
citizens captured, 'tried,' and lynched four murderers." Then after the
Civil War "crime and violence exploded." In the 24 years immediately prior
to the Civil War, Taney county in southwest Missouri had only three murders;
but "between 1865 and 1885, murderers killed between thirty and forty
victims. If a sheriff gave chase, the felon slipped across the adjacent
Arkansas border or west into Indian Territory... Consequently, few suspects
stood trial, and all but one received acquittals from juries stacked with
kinfolk and allies." It was after one such acquittal in 1884 that the Taney
county "Bald Knobbers" (named after a treeless mountain they met on) were
formed, with a membership that grew to 1,000. Contrary to the expectation
that would be likely today, the Bald Knobbers were formed by northern
elements, "mostly conservative Republicans and former Unionists," while
those who argued for the "rule of law" and recourse to the regular courts
were "equally respectable men" who were "mostly made up of Democrats and
former Confederate soldiers." Similar movements took place in Christian and
Douglas counties. The leader of the Taney county Bald Knobbers voiced his
opposition to widespread immorality, corruption and unpunished violence,
saying "it became a war between civilization and barbarism!" There isn't a
definitive summary in Hartman and Ingenthron of the actions taken by the
Bald Knobbers, but here is some indication from what they relate: "The
Anti-Bald Knobbers tallied the grim casualties: between fifteen and eighteen
men dead; three men and three women shot and wounded; two women and
uncounted numbers of men brutally whipped." One opponent is quoted as saying
that the Bald Knobbers [in Taney county alone] may have killed "more than
thirty men and at least four women." The movements were short-lived, lasting
approximately three years. Their demise was due in part to the presence of
an opposition, which resulted in several indictments against members, and to
the absence of pure local autonomy. A "vigorous federal probe" through U. S.
district courts made it dangerous to participate.37
Another example
that contradicts the image occurred in New Orleans. Eleven members of a
"Mafia faction of immigrant Italian dock workers," according to Richard
Maxwell Brown, were lynched in 1891. They were thought to have murdered the
chief of police, but were acquitted by a jury. When the public concluded
that the jury had been tampered with, a mass meeting was announced in the
newspaper. Some of the suspects were shot while attempting to get away;
others were hung "before a throng of thousands." The lynching was
participated in by city officials, was supported by all of New Orleans'
papers, and had, according to the New York Times, the public's
unanimous approval.38
White
southerners often attributed the lynching of blacks to the terror whites had
of black rapists. Most of the writers on lynching treat this fear as a
"myth." In Jacquelyn Dowd Hall's Revolt Against Chivalry, for
example, the view is expressed that "this southern 'rape complex' was never
founded on objective reality. Of the known victims of lynch mobs in the
period 1882-1946, only 23 percent were accused of rape or attempted rape."
Edward L. Ayres in Vengeance and Justice says that "whites, it
seems fair to say, did not know they were battling a foe of their own
creation." Nevertheless, as Ayres himself shows, white commentators
discounted the "myth" characterization, holding that the black-on-white rape
was both very real and a key to understanding the lynchings. Ayres quotes a
certain Clarence H. Poe: "To say that men are lynched for other crimes than
that against white women, and that therefore lynching cannot be attributed
to it, is to be more plausible than accurate. It is with this crime that
lynching begins; here and here only could the furious mob spirit break
through the resisting wall of law and order. Once through, it does not
stop."39
The United States: the Northeast after the Civil War
As we've seen,
lynching was not exclusively a southern phenomenon, but took place in a much
broader context. That context included lynchings in the northeastern United
States (or what I will call "the northeast" to differentiate it from the
South and the West). Cutler's table shows that between 1882-1903 there were
52 in Indiana, 21 in Ohio, 21 in Illinois, 8 in Michigan, 7 in Pennsylvania,
6 in Wisconsin, 2 in New York, and one each in New Jersey, Connecticut and
Delaware. Of this total of 120, 79 were of whites, 41 of blacks. Murder or
rape was the provocation for almost all of them.40
Among the many
books I read in preparing this monograph, one of the best, since it brings
considerable sociology and philosophy to bear in a thoughtful way, is Dennis
B. Downey and Raymond M. Hyser's No Crooked Death: Coatesville,
Pennsylvania, and the Lynching of Zachariah Walker. It tells of the
lynching that occurred on August 13, 1911, in a small steel-mill town in
southeastern Pennsylvania. The town had undergone rapid change as the steel
mills brought in black and immigrant workers. What had been a quiet,
peaceful community became frontier-like: "Drunks jeered and made gestures at
passersby... Native white residents, angered by the decline in civility and
the increase in arrests, violent crime, and property damage, avoided the
shopping district...." A family of four had been murdered the preceding
September and a non-English-speaking immigrant had been charged with the
crime.
It was in the
context of this "siege mentality" that Zachariah Walker, a black who had
come to Coatesville from Virginia and who lived in "a collection of shacks
that passed as homes on a bluff overlooking the sprawling steel mills," got
drunk, shot at two immigrant workers, and then shot and killed Edgar Rice, a
white security officer for one of the mills (arguably in "self-defense" when
the officer tried to arrest him, although that smacks of sophistry). The
next day, virtually the entire white community became involved in a manhunt
for the killer, visited the widow and her four children, and viewed the
body. After Walker's arrest, a crowd of from 4- to 5,000 people formed,
pulled Walker out of a hospital in which he was being treated for injuries,
and burned him alive. There was a "huge roar of approval," but otherwise the
crowd, consisting of men, women and children, was "polite and
well-mannered." Walker crawled out of the fire several times but was beaten,
tied with ropes, and forced back into it. The policeman's widow regretted
that friends and family didn't allow her to see the lynching, saying that "I
wanted to apply the match." On August 17 an estimated 6,000 people attended
Rice's funeral. In the aftermath the lynching was condemned by virtually all
media outside the local community, but public opinion in Chester county,
where Coatesville is located, supported it. Criminal charges were brought
against several of the leaders, but the trials resulted in acquittals.41
Part II: Issues of
perspective
Was lynching unique to American history?
As part of the
hostile cultural critique of American society that rose to a crescendo in
the 1960s and that continues in important sectors today, but that has
existed within our intellectual culture since as long ago as the 1820s, it
is common to say that the United States "has a history of violence" that
explains why our crime rate is higher than in, say, Europe or Japan. This
perception has long been expressed in the literature about lynching, where
the conventional wisdom is that lynching is unique to the American people.
Cutler began his 1905 book Lynch-Law with precisely this view: "It
has been said that our country's national crime is lynching. We may be
reluctant to admit our peculiarity in this respect and it may seem
unpatriotic to do so, but the fact remains that lynching is a criminal
practice which is peculiar to the United States...[It] is to be found in no
other country of a high degree of civilization."1
The reader will
notice the qualification expressed in the last few words. By definition, one
can say that lynching and a high degree of civilization do not go together,
if part of what we mean by civilization (as we should) is an orderly society
founded upon law. His qualification is a hedge that allowed him to give less
importance to a good many counter-examples from other cultures.
Just two pages
later Cutler tells of lynching in nineteenth century Russia: "The Russian
law provides only a light punishment for horse-stealing, and, since the
peasant's horse is almost his only property and is his chief instrument of
labor, summary methods seem necessary in order to check the veritable plague
of horse-stealing...When a thief is caught, the common way is for the men of
the village to club him to death...Another method is to tie the criminal by
the feet to the tail of a young and active colt which is then ridden at a
gallop until little is left of the horse-thief. There is also the method of
execution whereby the thief is bound hand and foot...and the women of the
village thrust needles...[into him] until death ensues." He distinguished
the Russian situation from that in the United States by saying that it "is
found in the loosely organized society of the peasants in the rural
districts." But, of course, that is no distinction at all.2
Although Cutler
then argued that "nothing like lynch-law can be said to prevail in Europe,"
he followed this by saying that "occasionally mobs put persons to death who
have committed some brutal and outrageous crime." He cited how a man had
recently (in 1902) been lynched in Hungary after he deliberately burned his
wife, parents and three sisters to death. "A similar report tells of the
lynching of a Bohemian village schoolmaster...." Referring to China, Cutler
mentioned the "secret tribunals for thieves and robbers." He pointed back,
too, to the Vehmgerichte in feudal Germany, a highly organized
series of popular tribunals that "afforded some protection against the
outrages of the princes and nobles"; "lynch-law in the United States has
never been administered by an organization so perfect and extensive as that
of the Vehmic courts."3
Shay provides
similar evidence: "Summary justice has been meted to individuals throughout
history. There are isolated instances in modern Europe, but these bear the
stamp of genuinely spontaneous action on the part of the people who,
outraged by his criminality, fell upon the offender and put him to death."
He, too, tells of the Vehmgerichte, and adds that "the Lydford
laws, gibbet or Halifax law, Cowper and Jeddart justice, and the Scotch
burlaw bear a strong resemblance to our Frontier Justice...All these
practices originated in a genuine and popular need and through the lack of
regularly constituted law courts."4
Today, "popular
justice" flourishes in several parts of the world where for one reason or
another society is unsettled:
. David
Weisburd's 1989 book Jewish Settler Violence: Deviance as Social
Reaction tells in sociological terms about vigilantism, in which death
is sometimes inflicted, by Jewish settlers in the Gush Emunim settlements on
the West Bank. "Settler vigilantism was a community-supported strategy of
control in which a large number of settlers participated... Settlers argued
that it was necessary for them to take the law into their own hands because
the military government...failed to provide sufficient protection from Arab
law-breaking...The Zionist belief in self-reliance also played an important
part in legitimizing settler vigilantism...Few settlers were arrested for
vigilante acts and none interviewed in this study received any significant
sanctions...Settlement communities shielded vigilantes from prosecution."
Since his book appeared, a press report for September 28, 1993, has told
that "the Judean Police, a group of Jewish vigilantes in the occupied West
Bank, vowed Monday that they would shoot on sight all members of the
Palestinian police force now being created under the Israel-PLO peace
agreement." As to the Arab side, there is a press report on December 25,
1993, from the Gaza Strip: "'We control these streets,' said Tafish, 24, a
local leader of the Fatah Hawks, the military wing of Yasser Arafat's
faction in the Palestine Liberation Organization...We make the laws and
punish the offenders."5
. Brazil today
makes any part of nineteenth century America look tame. An Associated Press
story on August 25, 1991, told how "Brazilians fed up with rampant crime and
turnstile justice have turned to vigilantism, forming lynch mobs and killing
suspects in record numbers. No exact figures are available, but some
officials say more than 500 people will die in lynch-mob executions in 1991,
three times more than any previous year [emphasis added]. National attention
was focused on lynchings last November 23, when 5,000 residents of
Matupa...attacked three prisoners in a police car. The three had just been
arrested for trying to rob a rancher's home and holding three women and four
children hostage. In the space of two hours, the mob beat the three men with
metal rods and rocks, poured gasoline on them and burned them alive...In
January, 1,500 people stormed a jail in Andira...and tried to kill two
prisoners accused of killing a taxi driver."6 A press report on
December 5, 1993, says that in Rio de Janeiro, where "the city has
registered more than 3,000 homicides a year since 1989," there was a
front-page photo in September 1993 of "a man being burned in a bonfire by
residents of the neighborhood after he was identified as the person who had
torched a house, killing an infant girl. A tree limb had been inserted into
his body."7
. Another press
report on the same day told how "people's courts" had sprung up among blacks
in South Africa prior to the election of Mandela: "In the absence of any
legitimate mechanism of law enforcement in the [black] townships, a private
culture of street justice and people's courts has evolved...They feel like
they are doing something for the community if they kill a criminal figure or
a member of an opposition faction."
. An Associated
Press story on January 4, 1994, told how "thousands of youths disappeared in
Sri Lanka in 1989 and 1990. They were allegedly killed by
government-sponsored vigilante groups that crushed a two-year
anti-government campaign by Sinhalese nationalists."8
. Although a
debate over prosecution of a hitherto hidden war crime doesn't literally fit
into the context of lynchings, a news story on January 1, 1994, shows that
even with so civilized a people as the British in the 1990s there are many
of the impulses discussed here. A debate was raging about whether
paratroopers who were heroes of the Falklands War should be prosecuted. "In
1991, Lance Cpl. Vincent Bramley, a machine-gunner with the Third Battalion,
published his memoirs...In his book, Bramley detailed two incidents...in
which unnamed comrades allegedly shot four [Argentine] prisoners after they
surrendered..., cutting off ears for trophies." The editor of the London
Daily Telegraph has argued, the report says, that it is "lunacy" and a
"betrayal of our heroes" to prosecute the soldiers, while "other voices have
been raised in defense of British justice."9
From all of
this if would be difficult not to conclude that community-condoned
extralegal violence in nineteenth and early twentieth century America was in
no way unique. The "good and decent" people of that day were not
substantially different from similar people everywhere, who will assert
themselves with great energy and even cruelty if sufficiently outraged.
Was
lynching essentially, or even significantly, "racist"?
Countless
authors have drummed home a major point about lynching. It is that "southern
lynching was a vicious act of racism calculated to 'keep blacks in their
place.'" It is only after an extensive historical review of vigilantism that
we are prepared to see how mistaken--in fact, how ideologically warped--this
assessment is.
Here are some
examples of the charge:
. By Jacquelyn
Dowd Hall in Revolt Against Chivalry (1993): "Lynching functioned
as a mode of repression because it was arbitrary and exemplary, aimed not at
one individual but at blacks as a group. White supremacy was
maintained...and lynching worked effectively to create a general milieu of
fear that discouraged individual and organized black assertiveness."10
. By Arthur F.
Raper in The Tragedy of Lynching (1933): "It is not surprising to
find the mass of whites ready to justify any and all means used to 'keep the
Negro in his place.'"11
. By Dennis B.
Downey and Raymond M. Hyser in No Crooked Death (1991): "For
whites, lynchings were a means by which to reassert the ethos of white
supremacy." In the context of the Coatesville lynching of Zachariah Walker,
"the lynching forged a hitherto unknown unity among the disparate elements
of this industrial community's white population."12
. By Donald L.
Grant in The Anti-Lynching Movement: 1883- 1932 (1975):
"Lynching...became the most effective method of maintaining the racial caste
system which developed after Reconstruction. This caste system relegated
Blacks to the position of a conquered people and made it possible for whites
to receive the economic, psychological, and sexual tribute which they had
been conditioned by slavery to expect as their due."13
. By Robert L.
Zangrando in The NAACP Crusade Against Lynching, 1909-1950 (1980):
"It was the indiscriminate use of violence that gave the mob its real
utility as an instrument of intimidation and control in a racist society."14
. Such
generalizations expressing an alienation against American society become the
common coinage of the media. An example is the Los Angeles Times/Washington
Post story on October 25, 1992, about the 1963 murder of civil rights
activist Medgar Evers. The article says that "between 1881 and 1966, there
were 4,709 lynchings in the United States, most of them racially motivated
killings of Southern blacks...."15 [Notice that the statistic
given for this generalization is not the smaller one for southern lynchings,
but the larger one that includes those in the West and the Northeast. It is
odd that the larger, far less relevant, figure would be cited, but it
certainly served the article's polemical purpose.]
From a
scholarly point of view, those who write such assertions should feel
obligated to support them with evidence and argument. Instead, they have
counted on an intuitive connection based on the coexistence of two facts:
that the lynching of blacks occurred, and that southern whites were
"racist." (In the world since World War II, "racism" has come to be seen as
a matter of pure evil, although that assessment is applied almost entirely
to Caucasians and is not applied equally to the racial preferences of other
ethnicities.)
That both of
these elements, lynching and racism, existed cannot be doubted. But it is a
post hoc fallacy to conclude that southern "racism" was the cause
of the lynching of blacks. To assert the connection, it is necessary to
argue that "but for the existence of racism, the lynching, or at
least a significant part of it, would not have occurred." (This is the
"but-for test" that juries are instructed to use to determine causation in
tort cases.) To establish this clearly, those asserting the thesis would do
well to negate the presence of any other cause sufficient to explain the
lynchings. Although there can be two or more simultaneous causes of
something, each of which would meet the "but-for test" if it were operating
alone, the proof of one is made considerably more difficult by the presence
of the other. In addition, those making the conventional point need to rebut
the many counter-examples that show that southerners often acted in ways
that the "racist" hypothesis would not predict. Those things directly
contradict the generalization.
Do the critics
of the South do this? One searches the very extensive literature in vain
looking for it. The literature is polemical, occasionally scientistic in the
context of the social sciences, sometimes even analytical about peripheral
issues, but it never questions or seeks to justify its central supposition:
that blacks were lynched because of their race. The dialogue about these
things is not over, so it is not too late to issue a scholarly invitation to
others to argue the point and provide the evidence. The burden of historical
persuasion, however, is on the person who asserts a causal connection.
There is, of
course, a major alternative explanation for the lynching of blacks, and that
is the crime that was so widespread and outrageous. I won't repeat the facts
cited earlier. It is sufficient to notice that Cutler, who is even one of
those who asserts the racial hypothesis, quotes with favor a statement that
"the worst instincts of the negro came to the front; the percentage of
criminals among negroes increased to an alarming extent; many were guilty of
crimes of violence of the most heinous and repulsive kind." Arthur F. Raper,
another who asserts a racial linkage, gives the comparative murder rates:
"In 1921-22, the homicide rates in Atlanta, Birmingham, Memphis, and New
Orleans per 100,000 Negro population were 103.2, 97.2, 116.9, and 46.7
respectively, while the corresponding rates for the white population were
15.0, 28.0, 29.6, and 8.4." These figures are eloquent testimony that
serious crime was the primary provocation for lynching.16 If
those murder rates had existed in the post-Civil War West, the perpetrators,
whatever their race, might well have expected to swing from the bridge over
the Neosho river.
The only
linkage to racism that is persuasive, albeit only in part, is in the cases
where a lynching occurred without an outrageous provoking cause. Jane Addams
and Ida B. Wells, in Lynching and Rape: An Exchange of Views, refer
extensively to the Chicago Tribune statistics and point out that
cases are cited of negroes' having been lynched for "violating contracts,
unpopularity, testifying in court, or shooting at rabbits." Cutler makes the
same point to explain why the Tribune listed some lynchings as
caused by "race prejudice": "The probable reason...is that no offense had
been committed which was considered worthy of mention as a cause." It seems
sensible that if there was no genuine provocation (although we should keep
it in mind that the local community may have perceived the preceding events
differently than a Chicago Tribune compiler did), the lynching must
have been caused by the other main potential motivating factor, race
prejudice. This is persuasive to a point. The weakness in it lies, however,
in there having been whites who were also lynched for "minor
offenses." If race was the cause, how is that to be explained?17
This doubt is
deepened when we take into account all of the counter-evidence that
militates against the racism-as-cause explanation. Here is the rebutting
evidence I have noticed:
1. Some may not
credit it because it can be taken as a self-serving statement by a white
southerner, but to me there is significance in what Henry W. Grady, perhaps
the major exponent of the white South's perspective during the last decades
of the nineteenth century, was able to write in Century Magazine in
1884. What he wrote must have rung true to his readers, at least from their
perspective, since if it were known to them to be nonsense his article would
have had little persuasive value. He was talking about the treatment blacks
received in southern courts, but it has a bearing on the nature of the
"prejudice" that is said to have animated whites: "There is an abundant
belief that the very helplessness of the negro in court has touched the
heart and conscience of many a jury, when the facts should have held them
impervious. In the city in which this is written a negro, at midnight, on an
unfrequented street, murdered a popular young fellow...The only witnesses of
the killing were the friends of the murdered boy. Had the murderer been a
white man, it is believed he would have been convicted. He was acquitted by
the white jury, and has since been convicted of a murderous assault on a
person of his own color. Similarly, a young white man, belonging to one of
the leading families of the State, was hanged for the murder of a negro."18
2. It is
especially worthwhile to notice the last sentence of the quote just given
from Grady, which tells that a white man, even one of prominent social
standing, was executed for killing a black. This is inconceivable to the
proponents of the racial thesis. It also runs counter to a Marxist class
analysis.
3. The lynching
in the South was not limited to blacks. Whites, and even white women, were
lynched, too, obviously not for reasons of racial prejudice. Cutler's
statistics show 567 whites lynched in the South between 1882-1903,
inclusive. When other parts of the country are included, Zangrando's
statistics indicate 1,297 whites between 1882 and 1968. A famous case of a
white man's being lynched is the August 1915 lynching of Leo Frank in
Georgia after he was convicted of rape-murder. Wright tells how in eastern
Kentucky in 1868 nineteen supporters of the Republican Party, apparently all
white, were murdered within a four-month period. He says that even though a
number of whites were killed for this reason relating to the aftermath of
the Civil War, murder was the most frequent provocation. He mentions a white
who was lynched for murdering his mother-in-law, another for killing his
wife. In 1877 five members of the Simmons gang, all white, were taken from
their jail cells and lynched. In the 1880s, several vigilante committees
were formed to catch and lynch outlaws. We recall that the Bald Knobbers in
southwest Missouri involved white-on-white vigilantism, including lynchings.
Richard Maxwell Brown tells of the White Cap movement (another of the many
names for vigilantism) that "first appeared in southern Indiana in 1887,
but...spread to the four corners of the nation...[W]hite capping was the
most prevalent as a sort of spontaneous movement for the moral regulation of
the poor whites and ne'er-do-wells of the rural American countryside. Thus,
drunken, shiftless whites who often abused their families were typical
targets of White Cap violence." This was a movement directed at what in
those days respectable society called "white trash." If all of this went on
and was not racially motivated, why are we to conclude that blacks
were lynched for a totally different reason?19
4. In Tennessee
in 1911, according to Shay, four white men "lynched" a black and his two
daughters with no known provocation. "Two of the white men were ultimately
hanged for their part in the lynching." [In light of the meaning of
"lynching," what Shay is talking about is a case of murder and not of
lynching, since the act was not done as an expression of community
sensibility and did not receive community approval.] If indiscriminate
anti-black racial brutality had been part of the community ethos, the white
men would not have been executed.20
5. Wright says
"there were cases of blacks being lynched by whites for
the murder of blacks" (emphasis added). This is totally incongruous
if one accepts the racial hypothesis, since according to it whites would
have welcomed blacks' murdering of other blacks.21
6. Blacks did
some of the lynching themselves, sometimes of other blacks, sometimes of
whites. Shay says that "in 1908, at Pine Level, Johnston County, North
Carolina, it is recorded that an unnamed Negro entertainer was lynched by
Negroes for putting on a poor show." [Notice, too, that the lynching here
was for insufficient provocation, which when done by whites is taken as
evidence of their racial motivation.] Another case cited by Shay occurred at
Caddo Parish, Louisiana, in 1934 when "a thirty-year- old Negro was beaten
to death by members of his own race because of an alleged insult offered by
[him] to a colored girl...." Most significant is the case in Clarksdale,
Tennessee, in 1914, "when Negroes...lynched a white youth for the rape of a
Negress. The coroner's jury, believe it or not, brought in a verdict of
justifiable homicide and freed the blacks" (emphasis added). Shay's
exclamatory "believe it or not" underscores how greatly the white coroner's
jury's action contradicts the conventional wisdom. The historian E. Merton
Coulter tells how "in Chicot County, Arkansas, in 1872 armed negroes took
three white men from jail, riddled them with bullets, and went about burning
and pillaging." This shows that it wasn't just white mobs that succeeded in
getting people from the custody of jailers.22
7. We might
surmise that someone propounding the conventional theory that "racism was
the cause" would suppose that there would have been more lynching of blacks
in Mississippi, considered a notoriously "racist" state, than in Kansas,
where at the beginning of the Civil War anti-slavery forces prevailed over
the pro-slavery faction. It is surprising, then, that Donald L. Grant tells
us that "the number of lynchings per thousand Blacks in Kansas during the
1890s was practically the same as in Mississippi."23
8. The most
important refutation of the racism explanation lies in southern lynching's
place as just part of a much larger mosaic of turmoil and popular justice,
such as occurred in colonial America, in the entire country before the Civil
War, in the West, in the Northeast, and in the world at large whenever
society is unsettled. It is extremely arbitrary and selective to consider
the lynching of blacks in the South just by itself,
dropping the larger context. Seen just by itself, the racial hypothesis
seems plausible, which is why readers quite gullibly accept the charge; but
seen as part of a larger phenomenon occurring at exactly the same time,
it comes to share in the explanations that are appropriate to the phenomenon
as a whole.
9. The
refutation needs to be on the merits of the argument, and on that basis the
refutation holds up well. But once that is established, an ad hominem
observation is not out of order. It is that there are ideological, political
and organizational reasons for the insistence on the racism hypothesis
(which, if we were to adopt the belittling semantic so often used by the
Left, we would now label a "myth"). Zangrando tells us that "the fight
against lynching offered the NAACP a ready means of appealing for new
members and financial assistance."24 It is no wonder that the
anti-lynching campaign continued long after the phenomenon itself withered
and died. And in the United States since the early 1960s, various forces
have been nourished precisely by keeping ever-fresh the blacks' collective
sense of grievance.
Did the
civil rights movement cause the disappearance of lynching?
A common
feature of modern social legislation has involved another post hoc
fallacy. During the very period when an evil is disappearing because of an
improvement in the economic level or a change in the condition of society,
public campaigns are waged and laws are passed for the evil's abolition. As
the evil disappears, the agitation and legislation are assigned the credit.
This was true with child labor, the disappearance of which was due to a
long-term secular trend away from agriculture and to rising economic
well-being. Child labor was praised in the 1830s while it was still
necessary, but as families became able to dispense with it, it faded out. In
most people's minds the early-twentieth century campaign against child
labor, resulting in legal prohibitions, is credited with having eliminated
it, but that is almost entirely an illusion. While families still needed
their children to work, there was no way to get the state legislatures to
abolish it.
The same
illusion was present in the relationship between industrial accidents and
OSHA (the Occupational Safety and Health Act); the number of industrial
accidents was on the decline for several years before the legislation was
passed.
This
misunderstanding also occurs about lynching. Zangrando is typical of much
writing on the subject when he says "as opposition mounted in the 1920s and
1930s, the number of reported lynchings declined." Again: "The steady
decline...reflected the [NAACP's] success in making the issue one of
national concern...." Donald L. Grant speaks of "the very success of the
reform in reducing the number of lynchings from a high of 230 in 1892 to a
low of eight in 1932...."25
It is much more
accurate to say as Raper did in 1933 that "lynchings will ultimately fade
from the scene with the general rise in the cultural level." Indeed, it was
virtually at the end of doing so when he wrote. Cutler told of the state
anti-lynching laws that were passed, and then added that "it is difficult to
point out in what way these laws have brought about a decrease... [A] marked
decline in the number of lynchings per year began several years before the
greater number of anti-lynching laws were enacted."26
The
anti-lynching movement of the late nineteenth and early twentieth centuries
can reasonably be credited with at least some minor causal role, however, as
a mid-wife to already-existing trends. An aspect of lynching was total local
autonomy, and as lynchings became an issue at the state and federal level
that autonomy disappeared. (We should take care to realize, however, that
local autonomy was disappearing for a variety of other reasons, too.)
Another aspect was a supportive local consensus. Local opinion did not
continue to support lynching once there was a general societal consensus
against it. The anti-lynching movement was at least the outward
manifestation of that developing national sensibility.
Needless to
say, the post-World War II civil rights movement had nothing to do with the
demise of lynching, which had virtually disappeared by the mid-1930s.
How great
an enormity was lynching when seen in historical perspective?
At Coatesville,
to Zachariah Walker and to Edgar Rice and his widow and four children,
historical perspective was irrelevant. But in a scholarly context it amounts
to a distortion of truth not to put lynching into perspective by seeing it
in context. Its magnitude needs to be understood in comparison to other
historical facts:
1. The
discussions above of whether lynching was unique to American history and of
whether lynching was "racist" bear directly on the question of perspective.
2. In terms of
the numbers of lives taken, lynching was minor when compared to many of the
enormities committed in almost any century, and most especially in the
twentieth. Zangrando, we've seen, has given the total as 4,742 people for
1882-1968. It appears that many lynchings in the West went unreported and
that there is probably a major undercounting for the South for the decade
right after the Civil War. Entirely arbitrarily, solely for the purpose of
gaining perspective, let us multiply that number by more than five to make
the total 25,000 over the 70 years between the end of the Civil War in 1865
and the dying-out of lynching in 1935. Let us then consider the fact that
most of the killings were a local community's direct response to a monstrous
act of murder, rape, or other spoliation first committed by the person
lynched. In the moral balance, the provoking crime by the person lynched
must surely have an off-setting weight of some sort. If this is taken into
account, the total takes on a considerably diminished significance. If we
had a way to remember the victims of those who were lynched and to gauge
their suffering, we might even find that the balance was not adequately
redressed by the punishments that were inflicted, although this can hardly
be true where lynching was by burning and torture.
Compare the
resulting diminished number, whatever the reader concludes it to be, with
the press reports of June 1, 1994, that 20,000 bodies were found in a single
convent in Rwanda, hacked to death in the reciprocal genocides being
committed in that country. Or compare it to the 10- to 15,000 Polish
officers executed by the Soviets in the Katyn Forest. We know that Stalin
cut off the food supplies to the Ukraine and other places in the Soviet
Union in the winter of 1932-33, starving an estimated seven to nine million
people to death in a deliberate act of state policy. And Public Television
belatedly tells us of a hitherto unknown 30,000,000 (30 million!) Chinese
who were starved to death, again as a matter of state policy, under Mao in
the early 1960s. These events have hardly received a ripple of attention
from a world distracted by its on-going concerns; and, perhaps more
significantly, academia has devoted almost no attention to them. Today's
American society sometimes takes a partisan position in favor of things just
as heinous. For years, the United States and the world at large supported
the African National Congress (ANC) in its drive for power in South Africa,
while fully informed that burning people alive through "necklacing" was a
deliberate ANC policy. Newsweek on June 2, 1986, told among other
things of a 62-year-old woman, Mary Skhosana, who screamed for mercy while
she was forced to drink gasoline and was burned to death with a gas-filled
tire around her neck. Along the same lines, the United States has in the
1990s supported a return to power in Haiti by President Jean-Bertrand
Aristide even though his "nine-month reign was marked by unmitigated terror,
including the 'necklacing' of political opponents," according Accuracy in
Media's AIM Report. The Report quotes Aristide as saying
in a radio address that "the people have their...little matches in their
hand, they have their little gasoline not too far away." We should consider
these things as we seek to assess the weight to give to lynching in
comparison to other enormities in world history.27
3. Part of our
revulsion comes from the supposition, which is presumptively justified in
light of the absence of legal proof of the provoking crimes, that at least
some innocent people were lynched. If some were, they were true victims. But
if we seek perspective we will realize that their agony does not count more
than the agony of the victims of the thousands of individually committed
murders that occur every year, or than that of the tens of thousands of
highway victims killed by drunk drivers, about which we have almost no
concern. (A press clipping tells of a German tourist in Miami who was
"robbed, beaten and run over in front of her mother and two children."
Surely she counts equally with any of the innocent victims of lynching. With
this in mind, the many writings that excoriate the "history of violence" in
the United States, using lynching as their prime example, are to be
understood as ideological magnifying glasses; they exploit wrongs for
essentially political and social purposes, making them larger than other
wrongs of equal or greater magnitude.
4. Another
reason for revulsion is that lynching flies so apparently in the face of
established legal process. To the extent it undermines the ideals of law and
of due process, lynching undermines one of the fundamentals of civilization.
That is primarily what makes lynching so great a blot on a society that
professes high ideals and that has in fact served as a beacon to the world.
When this
monograph discusses the relationship of lynching and law to justice,
however, we will see that there is much more to it. It will become apparent
lynching's flaunting of law and justice was far less than is usually
assumed; and that the commitment to justice by established legal
institutions often departs greatly from the ideal. Instead of two poles with
lynching at one end and legal institutions at the other, there is a complex
continuum. Legal institutions must themselves be scrutinized on an on-going
basis to see whether they even roughly approximate the ideal. Such an
understanding won't vindicate lynching, but it will again help put lynching
into perspective.
Part III:
What Lynching Says About Justice and Law
How do lynching and legal institutions relate to
justice?
What I have
found most interesting about this study of lynching is that it has caused me
to pursue certain thoughts about the nature of justice and of law. The very
idea of "popular justice" provokes questions that are both profound and
immensely practical. Humanity commonly means two quite different things by
"justice," and mixes them without clarity. One of these relates to the
actual truth and demands of a situation without taking into account the
need for human perception and interpretation of it; the other relates to the
process by which people in society determine the truth of an
occurrence and portion out just desserts based on the truth as they come to
see it. It should be apparent that these are two very different things, even
though the latter attempts to replicate the former. If we think of justice
as actual justice, we will think that a person is treated unjustly
if he is punished for something he didn't do even if he was given the
benefit of the most scrupulous and impartial procedure. If, on the other
hand, we think of justice as what results from a fair process, we will
consider a man to have received justice even if the process misperceives the
true facts, so long as every element of "due process" was extended to him.
Although
confusion can and often does arise from a failure to see the difference, any
form of humanly-arrived-at justice can at least be conceptually measured by
the demands of actual justice. For that reason, in this part of the
monograph I wish to examine
. the idea and characteristics of actual justice,
. the nature of
law and legal institutions as a form of mediated justice (i.e., one
that is based on a reconstruction of reality after the fact by the means
available),
. the nature of
"popular justice" that acts more spontaneously but nevertheless does not
escape the need to perceive and interpret,
. the strengths and defects of both systems (which will be
considered as part of discussing the nature of each),
. the miserable
situation the United States finds itself in in the late twentieth century so
far as its law and legal institutions are concerned, and
. what "popular
justice" has to say about how a system of regularized, mediated justice can
be made to match more closely the demands of actual justice.
The idea and characteristics of actual justice or "justice in
esse." Let us suppose that two cars are
approaching an intersection, and that the Ford has the green light and the
Chevrolet the red. They enter the intersection and collide. The occupants of
both cars are killed, and there are no witnesses. Since neither driver
attempted to stop, there are no skidmarks.
The event had
reality. Even the most committed solipsist can see that the smoking remains
are there, the ambulances, the dead bodies. In that reality, let us suppose
further, the Ford had the green light, and thus the right to go, and the
other the red. In that reality, there is clear fault in the absence of other
relevant facts such as the Chevrolet's driver's having had a heart attack as
he approached the intersection.
Not all
realities will be that clear; some are complex, and the justice of the
matter, even if taken directly without mediation, is not clear-cut. In a
marriage that has lasted many years, for example, the reality of the
relationship between husband and wife is composed not of something that
could be captured in a snapshot but of a flow of minutes, hours, days,
weeks, months and years. That flow of time has been filled not just by
objective facts, but by subjective realities within each of the people. We
simplify it more or less stupidly by speaking of just parts of it: that the
wife stabbed and killed the husband; that she did so because he was brutal
to her; that he was brutal because of his rage over her infidelity; that she
was unfaithful because he paid no attention to her; that he...etc. In such a
matter, it is a gross oversimplification to speak of one "actual reality"
leading to "actual justice." I don't wish to interject an unwholesome
relativism, but complexity far beyond the ken of anyone to understand is
something that moral philosophers need to take into account.
Nevertheless,
one might say that if he had a direct perception of the true reality, he
would do such-and-such. He would seek to act justly, giving each person his
"just desserts." That idea, however, like the moon on a humid night, has a
halo of ambiguity. What are "just desserts" actually, and not
merely through the mediation of mankind's applying norms that are designed
to fit many cases and may not fully meet the imperatives of a given reality?
As with Heisenberg's atom that moves when he attempts to see it through a
microscope, a moral philosopher will find that actual justice is
virtually unknowable to human beings, precisely because we have no choice
but to think and to act through a system of perception and interpretation.
It would take something like Plato's theory of ideal forms, refined to a
splendid degree, to come to grips with it.
That direct
justice--the justice that only an all-seeing God would be prepared to
declare--we might call "actual justice" or "justice in esse" (i.e.,
in actual reality).
The nature
of law and legal institutions as a form of mediated justice.
A civilized society seeks to regularize the process by which facts and
causation are determined, harm assessed, and remedies or punishment are
meted out. This is a social process undertaken after the events have
transpired, and one of the most important things to realize about it is that
the determination of all those things is based not directly on what
happened, since that is impossible, but on a reconstruction of that reality
through witnesses and demonstrative evidence of various kinds.
The actual
reality of what happened is an ontological fact; the human inquiry into that
reality is primarily of an epistemological nature involving the question of
how we know, through reconstruction, what that reality was.
As it makes
this reconstruction, a civilized society seeks to provide "due process,"
which is an impartial procedure that treats all relevant persons fairly,
hearing their evidence and arguments. It seeks, too, to follow
pre-established norms that the parties and everyone in the process can know
in advance and use to guide their conduct. Not only does this make the law a
helpful guide; it does something more: it limits the power of government,
which is restrained when government must act according to norms applying
equally to "all like cases." Friedrich Hayek's book The Constitution of
Liberty is the best discussion I know of of the service that the "Rule
of Law" provides mankind. (I am aware, of course, that many varied
proponents of the active state have attacked this conception of law, but
that is another issue for another time.)
This procedural
justice becomes the norm for justice within society. If carried out fully in
accord with its letter and spirit, it is the best mankind can do. Because of
this, a man who is sentenced to spend the rest of his life in prison for
something he didn't do, but who has received full due process in the
determination of his guilt and the assessment of the punishment, has no more
reason to be bitter at his fellow men for the waste of his life than he
would have for being hit by lightning. He has received the full measure of
mediated justice even though his imprisonment is totally unjust
in esse.
We may not
often think about it, but this regularized procedure of due process has
certain characteristics because of its very nature that carry it rather far
afield from realizing justice in esse. Here are some of the ways:
1. "Due process
of law" is unavoidably time-consuming because of the imperatives of
informing the defendant or the accused of the charges, giving him time to be
advised and to answer, determining any questions of jurisdiction and venue,
allowing procedures for "discovery" to permit each side to gather the facts,
holding the trial, and giving an opportunity to appeal. Taken together, this
cannot be compressed into too brief a span without sacrificing essential
elements of fairness and of objective adjudication.
2. Since in any
important matter there will need to be professional participation by people
trained in the system, it is expensive. It hardly seems necessary to
illustrate how delay and expense can deny justice and create new injustices
of their own.
3. The
"reconstruction" of reality is enormously fallible, depending on the
availability and nature of evidence. In the automobile accident example I
deliberately stated the facts in a way to show that a reconstruction may be
impossible. In such a case, the party with the "burden of proof" should
lose. Such a ruling is a purely formal resolution of the issues for human
purposes, and has nothing whatsoever to do with the reality of what
happened; i.e., to justice in esse.
Witnesses vary
from acute accuracy to complete misperception. I am reminded of an instance
when my daughter and I were returning home from her ballet class. She was
driving and I was in the passenger seat next to her. As we approached an
intersection, we saw two fast-moving cars almost collide. My daughter
thought that one of them had the green light; I, the other. I remember
thinking that since my daughter was driving, she most likely had been more
attentive; it was probable that she was right and I wrong. Questions about
this have since run through my mind: If the cars had collided, should I have
made my statement to the police, directly contradicting my daughter's, which
would have gone far toward denying a remedy to either side in court since
there would have been two conflicting impartial eyewitnesses? Or should I,
in trying to serve the purposes of justice through a resolution that would
have the greatest probability of matching what happened in fact (in esse),
have suppressed my own perception and have either said I didn't see what
happened or have gone so far as to confirm my daughter's perception? (If I
had done the latter, I might have swung the case conclusively in favor of
the party who was at fault and against the one who was in the right, since
there is the possibility--even though of lesser probability--that my, and
not my daughter's, perception of who had the green light was correct.) Our
legal system, committed so completely as it is to "justice as fair process,"
would answer these questions with an unequivocal "you should tell the truth
as you saw it." What we should notice, though, is that the law's
self-assurance on this point is based on an overall notion of what will make
possible the best reconstruction of reality in most cases, and has nothing
directly to do with what "actual justice" might have demanded in this
specific case. Not even my daughter and I know with certainty which of us
was right, and hence what "actual justice" demanded.
To say it
another way: the trial of a case in an adversarial system, or an inquiry by
neutral inquisitors in a non-adversarial system, involves a mediated
forming of a picture of reality. It is reality-once-removed, based on
inference and nuance.
4. Another
aspect is that a fair procedure seeking a reconstruction of what happened
introduces a considerable element of distance. Rather than being the "thing
itself," it is a vicarious process. Things are play-acted on a stage, and
become increasingly divorced from the reality that is being explored. One of
the great virtues of the film based on Truman Capote's book In Cold
Blood is that through the use of flashbacks it brings the brutality of
the murders into direct counterpoise with the hanging of the killers. But
this doesn't happen in real life, except in such moments as when photos of
the victims are shown to the jury; as the weeks, months and years go by, the
event becomes increasingly distant. There is no immediacy. This means that
much of the human meaning is drained away. I was struck by this while
watching the preliminary hearing in the O. J. Simpson murder case. There was
a moment of levity in which the lawyers and the judge were laughing. This
was entirely appropriate, even beneficial, to the civility by which a case
should be tried as a rational explication of evidence and argument. But it
bore no relation to the reality of what happened to Nicole Simpson, whose
slit throat and partially cut spinal cord almost amounted to her
decapitation, or to the other victim of the butchery, Ronald Coleman. Nor
did it bear any relation to the fate of the defendant, which is a crucially
serious matter to him. The court process is one human reality; the event
itself, and the punishment or other aftermath, something very different.
Along the same
lines of detachment and distance is the fact that bureaucratic process comes
to bear: the whole enormous apparatus of judges, prosecutors, defense
lawyers, court reporters, clerks, social workers, jailers, probation
officers. These are people to whom the case--any case--is necessarily one
among many. The reconstructive search to achieve justice that is as close as
possible to justice in esse stands still for a coffee break.
From all of
this it is possible to see that what a legal system gains in objectivity and
detachment, it at least partly loses through a serious loss of vitality.
5. Many of what
we consider the best protections of our criminal law are derivatives of this
fact of distance. Legal procedure in the United States derives its ideals
(although not always its spirit) from Blackstone's well-known admonition
that it is better to let 99 guilty men go free than to punish one innocent
man. This orientation leads directly to the rule that proof of guilt must be
"beyond a reasonable doubt"; to the requirement of a unanimous verdict, not
just of a finding by a majority or two-thirds or even three-fourths of the
jurors; and to the "exclusionary rule" that for the past several decades in
the United States has barred the admission of evidence if a search was done
without a warrant when the law says there should have been one. We are
accustomed to counting these as legal blessings. We don't even think of
their costs in terms of their effect on justice in esse. We forget
that to let 99 guilty men go free is to let 99 victims go unrequited. It is
an easy thing to say, "let 99 guilty go free"; we think only of the agony of
the one innocent man who might otherwise be convicted, thinking "there but
for the grace of God go I," and somehow we forget about the victims of the
crime. When a legal system pulls the process away from the victims, it
inevitably depersonalizes it; and we see how easy it becomes, through facile
legal ideology, to leave the victims' cry for justice frozen on their lips.
6. We must
count it among the "inevitable" characteristics of legal institutions that
they involve the "human factor." Legal institutions are social entities
suitable for study by the techniques of sociology and psychology. It is true
that the effects of this can vary because of many things, but within a broad
range there are the vagaries of courthouse politics, of egos, of ideology
and the part-truths of anyone's conventional wisdom, of fads and fashions,
of biases, of prejudices, often of corruption and venality, of personality
(such as is involved in the presence or absence of "judicial temperament"),
of budget constraints with their impact on staffing and plea bargaining and
sentencing, etc., etc. These factors introduce so great a cancer into the
American legal system that I have been thankful to be a law professor and to
be able to come into contact with the system only peripherally through a
part time practice. I even received a taste of this while I was still in law
school. We learned in class that the state of Colorado had a "strong public
policy" against gambling; but when the bar association held its annual
buffet dinner it followed it with a massive gambling session in which
lawyers and public officials allowed themselves to do what the law
prohibited to everybody else. It was an eye-opener; it showed me the
devaluation of their commitment to the ideals of law and equal justice.
Their willingness to do that in part reflected the cultural decadence that
has afflicted twentieth century America, but to a great extent it reflected,
too, the unwillingness of human beings to be constrained more than a little
by their ideals, which is something I will talk about at the conclusion of
this monograph.
7. In the
context of criminal law, which is the context most relevant to lynching, we
see that the vicariousness, the distance, the bureaucratic inevitabilities,
all combine to move the system away from the immediacy of retribution.
Punishment, when it comes, is not inflicted in an angry spasm by those who
feel most directly the pain of the crime. It comes much later at the hands
of professionals to whom it is a job and who really know nothing of the
particular emotions that demand retribution in the given case. The ideology
of the Left and the sentimentality that goes to extremes in modern America
(as in England in Macaulay's day) have given rise to a body of thought that
argues that "punishment" and "retribution" should not be part of the process
at all, since they are "unworthy" of civilized society. This amounts to
breaking totally the connection between the criminal's atrocity and the
social processes that are thrown into motion by the crime. The process
becomes bloodless and pale, and seeks to ignore entirely the gore of the
victim. "Deterrence" looks ahead to the possibility of future victims, whom
it very rightly seeks to prevent; "rehabilitation" looks ahead to the
hoped-for well-being of the criminal himself and of the society that someday
will become host to him again. Neither looks back to justice in esse
and seeks "just desserts" based on the reality of the past.
But this is
intolerable to human beings. It violates everything they sense about the
nature of equity. "Equity is equality," the maxim reads. After a crime, this
demands action to even the balance, to have people feel that "he got as well
as he gave." In fact, something extra needs to be added to the scales on his
side; it was he as the criminal, after all, who initiated the whole
destructive process by committing the wrong, and that in itself needs to be
redressed.
The move away
from retribution, both through the vicariousness of the process and the
ideology that denies a role to retribution, leads toward both good and bad
outcomes. On the good side, it reduces the potential for cruelty; in a
system with Constitutional constraints against "cruel and unusual
punishments" there will be no torture and burning alive. On the bad side, it
tends toward condonation. It isn't surprising that in case after case
criminals are let out of jail long before the public thinks they should be.
The whole thing leads toward forgetting the crime, treating it as a figment
from a distant past or as a "throwaway" because "it can't be undone anyway."
This then allows a non-retributive process to focus more than it otherwise
would on the redemptive potential of the criminal (which recidivism often
shows to have been wishful thinking).
8. Another
characteristic of the law is that it tends to address particular, discrete
acts rather than to look into the broader situation. I have often told
university classes that the "reasonably prudent person" test for negligence
is actually a perfectionist test in that it looks only to what the defendant
did in the one or two seconds immediately preceding an accident. It allows
him no ordinary human fallibility during that truncated time-frame, which is
the one relevant to the causation of the harm. The test does not have the
jury ask whether the defendant is, taken as a whole over a span of time, a
careful or a negligent driver. None of that counts. The only thing that is
relevant is what led to the particular accident.
To do otherwise
would be to give judges and juries wide- ranging power; and we find good
reason not to trust legal institutions, or government in general, with that
sort of discretion. (So we see how one of the forces among the many that
form our legal institutions is our very fear of government.) A court case
thus becomes an inquiry into a static piece, a snapshot, of reality. We
deliberately say that "whether the defendant is a 'bad man' is irrelevant to
whether he committed the particular crime with which he is charged."
Vigilante justice doesn't do that.
Another reason
for limiting the reconstruction to a specific act or finite series of
actions is that the reconstruction of reality in a courtroom simply doesn't
lend itself to a grasp of a complex, on-going human reality. A fine example
of this appears in the movie "Kramer v. Kramer" where the character played
by Dustin Hoffman appears to a judge to be an incompetent parent because his
son hurt himself in a fall at a playground. The audience seeing the entire
movie knows that the fall was just a small part of the whole reality, and
that the character Hoffman plays is really a caring, competent father. The
court's perception, based on a discrete fragment, is very different from a
perception based on the totality.
9. So far, what
I have said has stressed the distance, impersonality, and potentially flawed
nature of legal process. Since I will be comparing legal institutions to
"popular justice" as it appeared in lynching, it should be noted that, for
all their potential detachment, legal institutions can in many circumstances
become caught up in the same passions that actuate a lynch mob. There is
nothing about "going to court" that guarantees that the mediated justice
that occurs there is anything but a sham. Even where it is not a sham,
various strains of vigilantism may lurk just under the surface. Passion,
pressure from the community in which judges and jurors must continue to live
after the case is over, and commonly held attitudes shared as much by those
who conduct the legal process as by outside members of the community--none
are necessarily lost just because "the law is left to run its course." We
know that lynching is precipitous and devoid of safeguards against error and
disproportionate action; but the imperfections of legal institutions can
encompass these things, too, as well as many other flaws. (This is not to
argue, of course, that the balance, at least in an advanced society, comes
out in favor of lynching and against "due process.")
10. Finally, we
should note something that is often overlooked, which is that legal process
is suitable for some things but not for others. Where it best fits is in a
settled, civilized community where there are few infractions and it is
possible to give a "full dress" hearing that hears only the "best evidence"
and acts upon an assumption of the dignity of each of the participants. We
readily see that it doesn't fit war, where it is imperative to shoot at the
soldiers of the other army with no regard to individual hearings to
determine whether each is there voluntarily and actually intends to fire his
weapon.
It is a sign of
our overall lack of wisdom, however, that other unsuitabilities aren't
apparent to us. In recent years in the United States we have been oblivious
to the fact that many wrongs done in human relationships are best considered
"non-justiciable" if we care at all about the expansion of state
interference into our lives. By a series of legislation, we have outlawed
discrimination where any part of the motive is based on race, creed,
national origin, sex, etc.; and there is pressure to extend the list of
"protected categories." Prohibitions that touch hundreds of thousands,
perhaps tens of millions, of transactions will, if given more than the
merest token enforcement, involve courts and government in all of our lives
all of the time. We could do literally nothing else. We are protected from
this in part by our hypocrisy; the laws are on the books but the
enforcement, fortunately for society in general, is far from what it could
be. The very existence of these ubiquitously-defined wrongs, however, makes
all of our lives and property insecure. Every real estate broker, every
landlord, every employer, can be sued at any time and subjected to damage
awards so large as to strip him of his life savings. Property, savings,
industrious effort are all made as insecure as if we lived under an oriental
potentate.
Southerners
after the Civil War raised the question of whether full-dress legal process
was truly suited to containing the flood of barbarism. Whether that was true
is hard for us to say; it is easier for us to judge what can be done about
the flood of barbarism that threatens us today. When I was in law practice
full time and doing some criminal defense work, I once had a client sitting
across the desk from me and we were talking about what to put in the
application for probation. "Tell me anything good about yourself," I said,
explaining that I had known him only a short time. He couldn't think of
anything. So I prompted him, "What hobbies do you have? What interests? Any
friends who can say you're a good guy? A minister of a church you've
attended? A teacher who knows and likes you?" As to each of these, nothing.
In his eyes across the desk I could see the passive indifference of
spiritual and intellectual emptiness. He was "in but not of" the civilized
community, as the saying goes. If there are a great many like him, which
from all indications we know there are, their presence can become like an
ocean that no channel can contain. When we recall the crowd of women and
children who beat a purse-snatcher to death in Chicago last year, and we
think about what motivated them, we come face-to-face with human realities
that overflow the banks of "the law."1
The nature
of "popular justice." We shouldn't confuse
"popular" or "vigilante" justice with what I have called "actual justice" or
"justice in esse." Vigilante action may be swift and powerful, but
it still constitutes human action after the event. Its great weakness is
that it concerns itself much less than established legal procedures do with
the epistemological question. Even when it imitates legal procedure as many
of the "vigilance committees" did, it has no fully appropriate structure for
an impartial judgment. To an incalculable extent, this increases its
potential for acting contrary to the requirements of actual justice.
This has broad
ramifications in communities where vigilante action occurs. In concept, it
makes everybody's life insecure, since anyone could be seized by a mob and
given no meaningful chance to respond. It is probable that in practice,
however, this general insecurity rarely existed in the American context,
since the great majority of people who shared the sensibilities of the
community knew intuitively that they were "on the right side of things" and
weren't genuinely threatened with a turning of the tables. This is
especially true about lynching in the strict sense of the word, where the
actors act on behalf of what they understand the sense of the community to
be and the community does indeed demonstrate its approval. It would be
important to know whether upstanding members of the black community felt
insecure, since they would in some ways have been within the fold of the
predominant community and in other ways outside it.
As we speak of
"local communities," it is important to keep in mind that their own
understanding and motives can vary widely. If the community wants to
safeguard the rights and property of individuals and of families, that is
one thing; and that is what seems to have occurred in most of the lynchings
we have studied in the West, in the South, in Coatesville, in nineteenth
century Russia, and in Brazil today. If, however, the community acts from
collective ideology or self-serving motives (such as through envy or in
economic disputes), that is something else. Let us imagine a community in
which ninety percent of the people believe in a certain political philosophy
and are willing to put to death anyone who professes any other. Another
example comes from my own recollection. While I was in Marine Corps boot
camp, much fun was had by a sizeable group of the men in the platoon (the
relevant "community" at that place) who grabbed a fellow they considered a
weakling and took him into the shower where they scrubbed his skin raw with
laundry brushes. Their excuse, that he hadn't showered, was a mere
fabrication; their behavior was unmitigated, exuberant sadism. Groups as
well as individuals can be sadist; and they are not always "the good people
in the community acting together."
The common
definition of "lynching" excludes murders by individuals or mobs acting
without community approval, even if the murderer kills out of an arguably
justifiable desire "for justice." Those killings raise other questions, but
aren't what we are talking about in a discussion of vigilantism or popular
justice (which I treat as within the framework of lynching even though the
punishment is sometimes less than death).
Our discussion
of popular justice won't be complete without a review of its attributes,
good and bad (even though the review will need to reiterate some points
already made). Here are the thoughts that seem most to the point:
1. Unless the
vigilantes are unrepresentative, the activity is democratic, expressing the
will of the community in the most direct sense. Since, however, no orderly
determination of its representative quality is made, such as through
elections, its "democratic" aspect is roughhewn (which, by the way, is of no
particular concern to thinkers and cultures who do not seek a
"rationalistic" organization of society). In the case of the Bald Knobbers
in southwest Missouri, the community was divided into two factions, with the
Bald Knobbers representing only one of them. We can well imagine that an
anti-vigilante faction would grow in almost any community in which there
were a continuing tendency to bypass the regular legal system (assuming one
existed and were considered honest and competent). Unstructured and
relatively spontaneous, vigilantism is not something that can be
rationalized into a system of justice.
2. Vigilantism
is direct, primal, participative, distinctly not vicarious. As
such, it satisfies some elemental needs.
3. It is often
based on strong moral feeling.
4. There are at
least two reasons it often goes deeply into cruelty, even into sadism. One
is that those acting want both to make a moral point and to "set an example"
in the strongest possible way, expressing their outrage. Another is that the
"worst elements" sometimes step in to perform the actual violence. Much
lynching was done soberly and with discipline, but there was much that was
not. These factors led in many cases to a dehumanization of the person
lynched, so that he was no longer seen as deserving pity. Hatred turned him
into an object.
5. It is
motivated by allegiance to the immediate community and gives little weight
to abstract concepts. Philosopher John Nelson, who was one of my professors
at the University of Colorado forty years ago, has written me citing such
things as the tarring-and-feathering and riding-out-of-town-on-a-rail of the
state attorney in Colorado early in this century, concluding that "I see in
these cases an allegiance, more ancient by far than that to a government and
its agencies of legislation and law enforcement, to ones own society and its
determination of right and wrong." Lynching represented the most complete
local autonomy, with an assumed immunity from outside judgment and
punishment. This mostly arose out of the circumstances of the day, but it
also reflected a long tradition and ethos of local sovereignty,
self-reliance, and distrust for central authority. It was reenforced by a
culture of "honor" that imposed on men a responsibility to defend themselves
and those close to them.2 Moreover, it gave expression to a
belief in a higher law that made regular legal institutions seem weak by
comparison. We can see from all these things that there are vast
philosophical traditions, continuing within much of the world's thinking
even today, that support the values it embodied.
6. It seeks
retribution above all else, with deterrence a close second. Lynchings had no
rehabilitative aspect. Whippings may have.
7. Despite its
nobler motives, the spasmodic violence almost unavoidably picks up a variety
of more sordid motives. No doubt it is true to say as H. L. Mencken did that
it had a sporting element, providing exhilarating entertainment for some;
there is no assurance that personal motives and interests could not enter
in; and the violence could be a vehicle for sadism and racial prejudice,
which are aspects I have discussed.
8. It can
either run contrary to established legal institutions or be seen by the
community as supplementing them. The two have not in all cases been
antagonistic.
9. It is not
given to delay and expense, as the law is; nor to bureaucratism,
technicalities, sophistries, and courthouse politics. It is strong and
"sure"--but with nothing other than the community sense to guarantee that it
is right. Since that community sense is based on a rapid flaring of emotion
(although perhaps after a long-suffering awareness of the problem that has
come to a head in the particular outrage), we have no way of knowing that it
is not more prone to error than a court would be.
10. Popular
justice is based more on an overall sense of the evil-doer than a court's
judgment is. The community knows the individual and already assesses him as
vicious; or it distrusts him as a stranger. This is part of what lies behind
its willingness to dispatch him cruelly without rigorous safeguards. The
community precisely does not want any interposition of technical defenses.
Dennis B. Downey's book on the Coatesville lynching of Zachariah Walker
observes that a lawyer for Walker might have argued that Edgar Rice, as part
of the steel-mill security personnel, had no jurisdiction to try to arrest
Walker after he shot at the two immigrants; and that accordingly Walker had
an arguable claim of self-defense. This is an excellent example of the sort
of legal pettifoggery the community wished to have no patience for. To the
people of Coatesville, Walker was representative of the barbarism
undermining the life of the community, he had caused himself to become
drunk, he was armed and threatening the lives of innocent people, and anyone
who cared about the values he threatened had not only a right but an
obligation to try to stop him. They stood full-square behind Rice's
attempted arrest, and their sympathies were 100% with Rice's widow and
family after he was killed. If a court had had a chance to entertain an
argument of "self-defense" on Walker's behalf, the court would have been
concerning itself with a separate issue relating to the powers of private
security personnel. That question is not an improper one, but we can see
that it is divorced from the immediate focus of the Coatesville community.
One of the strengths of a regularized system of law is that the system takes
into account the many considerations that are important to society but that
aren't of immediate interest in the aftermath of an outrage. It is, at the
same time, a weakness.
11. Where
society is in disarray, popular justice may be the only kind of justice
obtainable, and hence the only bulwark against an otherwise unmanageable
tidalwave of crime. If there is no law, what is the community to do? Would
it have been better in the towns of the Old West to have let the horse
thieves and gunslingers hold sway? Would the good people of Brazil be better
off today if they did not act, but waited for legal processes to grind
slowly against each individual crime among the thousands of crimes? We don't
have to endorse vigilantism in general to see that there are circumstances
in which it is better than the alternatives. In a normal civilized setting,
of course, it is not.
12. Finally,
popular justice can be an alternative to corrupt institutions. Historian
Otto Scott refers to a source that says that when counties were organized
they were descended upon by a wolf-pack of dishonest officials. "Vigilantes
arose," Scott says, "to put down crooked authorities." The most graphic
example of this came in Bannack, Montana, in 1863 when a gang of stagecoach
bandits got their leader, Henry Plummer, elected sheriff. This led, Caughey
tell us, to a hundred (!) murders committed during the robberies that
followed. The vigilante movement in Montana sprang up to hang Plummer and
others like him.3
The simultaneous weakness and undue power of legal
institutions in the United States today. In an
excellent article in the July 1994 Chronicles, Samuel Francis
writes of "anarcho-tyranny." By this, he means "the combination of
oppressive government power against the innocent and the law-abiding and,
simultaneously, a grotesque paralysis of the ability or the will to use that
power to carry out basic public duties such as protection of public safety."
The point he makes is one that I made (although the title doesn't directly
suggest it) in my article "Affirmation and Distrust: The Growing Polarity
Within American Conservatism" in the July/August 1993 Conservative
Review.
These are not
new developments. I have been witness to them during all of the 36 years
since my graduation from law school. They appear, however, to be becoming
worse. The government's excess of power, put into effect largely through its
legal institutions, is apparent in its countless interventions into normal
productive life through such things as the wetlands regulations, the
Americans with Disabilities Act, and the attempt to turn a vast array of
human relationships into justiciable matter--to name just a few.
American law is
at the same time at least semi-impotent in the performance of its basic
functions. As I note the ways this emasculation appears, it will help to
keep at least the virtues of "popular justice" in mind as something of a
yardstick, since, despite all of vigilantism's faults, these virtues embody
directness and energy, the very opposite of impotence.
1. First, note
the element of delay. As already mentioned, delay dilutes retribution and
deterrence, and introduces injustices of its own. A New York Times News
Service article on February 27, 1994, reported that "experienced death
penalty defense lawyers said in interviews that it should not be uncommon to
file 50 to 100 pretrial motions in such cases." Those are just the
pretrial motions; so far as post-trial delays are concerned,
it took the state of Illinois fourteen years to execute John Wayne
Gacy after his March 1980 conviction of 33 murders. Although not directly
pertinent to delay, some facts about the case are worth noting: "The victims
were killed between 1972 and 1978," a press report says. "Many were
handcuffed and repeatedly raped. Most were strangled after Gacy tricked them
into allowing him to slip a rope around their necks, then slowly twisted it
tighter and tighter with a stick." He enjoyed a "last meal of fried chicken,
fried shrimp, french fries and fresh strawberries." It is worth noting that
"relatives of Gacy's victims, barred from the execution chamber by state
prison officials, maintained a tense vigil waiting for word of his death."
We see that they were completely marginalized by the process.4
2. We are
witness to a rampant failure to protect society, with known criminals
allowed to run loose to commit additional crimes. In Wichita, Kansas, where
I live, a newspaper report on August 30, 1992, said that "a 34-year-old man
considered a 'viable suspect' in a series of rapes this summer in the
College Hill area was arrested Saturday...after he allegedly burglarized a
house...and fled in the homeowner's car." The man had been "sent to prison
in August 1988 after being charged with one count of rape and five counts of
aggravated robbery...His parole date was unknown." A newspaper story on June
26, 1993, told how a member of one of Wichita's gangs showed up at a rural
home and threatened to shoot a 12-year-old boy at the house. When the
parents sought protection they were told "that Butler County law enforcement
officers were limited in their ability to arrest minors because the county
doesn't have a juvenile detention facility." A report in the Wichita
Eagle on September 30, 1993, tells how a jealous ex-boyfriend came into
a Burger King and shot a young woman to death. He was "out of jail on bail
after torturing and raping" the woman. A local judge had let him out for a
mere $250. When later the woman had called police for help after he had
phoned her, she was told that "we can't watch over everybody who gets a
threatening call." An editorial on January 3, 1994, says "violent spouse
abusers are arrested and released again and again,...warrants for their
arrest can go many months without being served because officers don't have
the time to even try to find them, [and] juveniles can pile up lengthy
arrest records with impunity." Three days later, on January 6, a news
article said that "Wichita's young criminals quickly learn they can go
through the system as many as five times and end up on probation." On the
17th of the same month the paper reported that a drunk driver who had killed
a man "has disappeared, exactly as Mandina's family warned he would when
authorities did not set a bond high enough to keep him in jail...'It's a
joke the way the justice system is,' said one family member who asked that
her name not be used. 'We are not happy with it.'" Then on March 19, 1994,
the paper told how a 21-year-old gang member wouldn't be charged for killing
a rival gang member because "it was self-defense." The one who is not being
charged is nevertheless in jail, but there is even a lesson in that: his
incarceration is "because of $50,000 in bonds that have accumulated as he
has not appeared in Municipal Court on more than two dozen misdemeanor
cases, some of which were weapons violations."5
If this is what
is produced by a regularized system of "mediated justice" today, popular
justice must indeed be horrible to be worse. The cases represent a profound
failure by government to protect lives and property. It is possible, too,
that they speak of a situation in which the tide of barbarism is so high
that it cannot be addressed without enormous resources being poured into
police, courts and prisons. To address it fully means a police state, with
the potential horrors that are attendant upon it.
3. This failure
to protect has risen to the level of authorities' not even responding to
many reports of crime. Writing in Chronicles, Roger D. McGrath says
that in Los Angeles "cars are stolen so often (nearly 200 a day) that the
LAPD does nothing more than list the vehicle on a 'hot sheet' and wish the
victim good luck. Korean merchants complain that customers brazenly walk out
of their stores without paying for merchandise because they know that the
police will not respond to a call for help. The police are simply
overwhelmed by the volume of crime...."6
4. Criminals
are sometimes let off on technicalities arising entirely out of the
inefficiencies of the system. The Wichita paper on May 6, 1994, quoted a
driver as saying "I'm going about 20 and this guy comes up behind me and
starts riding me real close...As I'm getting ready to turn, he runs into
me...he runs into me again...He hit me about eight times. And when I pulled
over, he side-swiped me." The outcome? "After three canceled court hearings,
the case was dismissed on March 2. The city prosecutors...dropped it when
they realized the damage exceeded $500. That made it a felony, they said, so
it had to be filed in District Court. But then county prosecutors said they
didn't want to file an old case that had already been filed in city
court...' This is exactly why people take things into their own hands,'"
[the victim said].7
Perhaps the
most serious problem in our criminal court system relating to "letting
criminals off on a technicality" comes from the "exclusionary rule," which
says that evidence becomes inadmissible if it was obtained through a search
that was made without a warrant in a situation where there should have been
one. The Fourth Amendment protection against illegal searches and seizures
is a vitally important limitation on the raw power of government, but
violations of it by police and prosecutors could be punished without making
the evidence inadmissible. As I write this, there are major questions about
whether important evidence in the O. J. Simpson murder case will be barred
under the exclusionary rule. The rule is one of the more foolish ever to
come from the U. S. Supreme Court: it makes the victims pay for the
inadvertencies or unprofessionalism of the police.
5. There is
vast recidivism, largely caused by the other abuses. The same criminal
commits one serious crime after another, even after being detected. A
Wichita Eagle report on July 14, 1993, told that an 18-year-old man was
shot in the back by a member of a street gang in 1991, then was blinded a
year later by a shotgun blast outside his home, but "refused to help police
find his attacker." In June 1994 he was himself arrested "on a domestic
violence complaint," but was bailed out by his step-father. Even though
blind, he was able to repay his stepfather's kindness by attacking him. "One
of [the stepfather's] brown eyeballs, gouged from the socket, lay on the
living-room carpet with strands of the optic nerve still attached." Another
article on November 19, 1993, told how a drive-by shooting into a crowd
attending a birthday party critically injured a 14-year-old. A 17-year-old
was arrested and charged. He was out on bail awaiting trial on an aggravated
battery charge stemming from another incident. He already had "convictions
of eight felonies and three misdemeanors in juvenile court, including four
charges of burglary of homes, one charge of aggravated burglary in which he
entered a home that was occupied...He also has convictions in juvenile court
for theft of handguns, shotguns, rifles, ammunition, electronics, jewelry
and coins in connection with the burglaries."8
6. The courts
often give up trying to fit the punishment to the crime, and this results in
a leniency that denies both retribution and deterrence and that seeks only
half-heartedly to address even the question of rehabilitation. In a speech
on May 16, 1994, U. S. Supreme Court Justice Clarence Thomas asked "what are
we telling students who are trying hard to do well in school and to avoid
drugs, or the upstanding public housing tenant who respects others' property
and well-being, when our law fails to express outrage at those who do
wrong?" Earlier in this monograph I told how in Washington state a man's
house was burned down, presumably by angry townspeople, when he was released
after serving just 18 months of a four-year sentence "for first-degree
statutory rape of a 10-year-old girl."9
7. More and
more, "crime pays." Notoriety translates into money in today's mass-media
society. An eye-opening feature by Larry Sutton of the Knight-Ridder News
Service on January 3, 1994, cites eight prominent cases. Joey Buffafuoco's
sexual relationship with Amy Fisher has led "to three television movies, a
book and an alleged $250,000 payoff for chatting on [TV's] 'A Current
Affair.'" Lorena Bobbitt, who cut off her husband's penis, "has made David
Letterman's Top 10 more than once." Basketball great Wilt Chamberlain made
money from his biography in which he told of having sex with 20,000 women.
Sidney Bittle Barrows, famous as "The Mayflower Madam," "got a book and a
television movie for her troubles, and she now writes an advice column...."10
8. This leads
again to a point mentioned in other contexts: that the legal system is
simply inadequate to address America's civilizational collapse into
barbarism. An Op-Ed column by Rowland Nethaway on October 30, 1993, carries
the headline "Remorseless Kids Are National Disaster." He told of a case in
Irving, Texas, where "a young teenage girl greeted a pizza deliveryman with
a blast of hair spray into his eyes. The girl's three teenaged companions
then...hog-tied, blindfolded, kicked and beat" him. They joked about
exploding firecrackers in his nose and ears, but settled for beating him
"with boards with protruding nails." Then they stabbed him repeatedly,
adding the final touch by slitting his throat. Somehow, he lived. After
telling of two other such cases which he read about in the same day's paper,
Nethaway says "this is different. There have always been wild and rebellious
kids...[But] many of today's youth don't seem to know right from wrong.
Children are robbing, maiming and killing on whims, and with no pity and no
remorse."11
Lessons from "popular justice." If
vigilantism and lynching can be considered symptoms of a social disease
during the disarray of the seventy years following the Civil War, America's
carnage today is similarly a symptom of how far the country's culture has
come from a sound moral and legal order. There has been a loss of moral and
cultural consensus and of the social pressures that enforced conformity to
moral injunctions; and government and legal institutions have been allowed
to evolve into a Leviathan that is simultaneously far too strong and far too
weak. These things have come about through intellectual and social forces
that have attacked the well-springs of civilized society. Unless they
contain their own self-curing mechanisms, we cannot hope to overcome the
process of dissolution so long as we fail to understand those forces. This
monograph has not been the place to analyze them, but it serves to
underscore how important the task is.
"Popular
justice" points to certain virtues a legal system should have. Law must
along with its other qualities be suffused with energy, with dispatch, with
a full regard for the civilizational claims of the law-abiding citizen. And
it must do its job in a manner that at least roughly approximates its own
ideals. It is not likely that there has ever been a golden age of the law
during which this has been accomplished, but we can say that until legal
institutions come to capture or recapture those virtues, we have little
reason to be highly critical of the communities of the nineteenth century
whose citizens "took the law into their own hands." In the social crisis in
which Americans find ourselves, we will need to work to remedy the
decrepitude and venality of regularized justice. The ways to do this are not
technically difficult, but there are enormous human obstacles to arriving at
a consensus about them and then implementing them.
A
larger polarity: the tension between ideals, principles and law, on the one
hand, and a universal desire to cut corners and directly to address the
realities of life, on the other.
This discussion
of lynching has discussed local communities' departure from legal process to
enforce their own values where they have found legal institutions
unavailable, inadequate or corrupt. Popular justice is also an excellent
illustration of a broader phenomenon: the fact that everywhere human beings
talk of ideals, excellence, morale, ethics, and law--in other words, of
behavior ordered by norms in which people profess to believe--, while in
their behavior they often allow themselves to depart from those norms. They
do this because for a number of practical reasons satisfactory to themselves
they find ideals encumbrances. To the ordinary human being, punctilio is one
thing, life in all its vitality another. The effects are sometimes
beneficial, sometimes harmful.
As with so much
else, examples can be both large and small:
. The public
philosophy of the United States is totally committed to the support of "free
speech." The U. S. Supreme Court treats this freedom as among those with the
highest priority. And, Constitutional law aside, freedom of inquiry is
universally acknowledged as fundamental to both the spirit and the practical
pursuit of science, of thought, of research, of academia, and of democratic
institutions. Europe and America have a revered intellectual tradition going
back to Galileo, Milton and Mill of championing the right of free
expression, from which all sorts of good is known to be derived.
But how much do
people, including the governing elites, really believe--"in their
gut," to use the graphic colloquialism--that freedom of inquiry is a good
thing? At all times and places in history--not excluding the United States
in the late twentieth century-- significant areas of thought are treated as
so taboo, as against what "everybody knows to be true," that "no one dares
speak their name." Anyone who even studies those things is thought to commit
a moral crime. There are, for example, scientists with the highest
credentials who say that intelligence testing shows that the races are not
equal in mental ability. They are not met by reasoned argument and
counter-evidence, but by vituperation and violence. [This was written before
the release of Richard Herrnstein and Charles Murray's The Bell Curve.
Although that book did incur much vilification, it also elicited much
intelligent comment, making the subject of comparative intelligence less
apposite an example of my point than it had been earlier.]
There are other
issues that aren't quite so taboo, but that don't receive the give-and-take
of free inquiry. I have written a series of essays on subjects of that sort,
such as the justification for the relocation of the Japanese-Americans from
the west coast during World War II. "Political correctness" puts a blanket
over these, so that there is no discussion of them.
As to many
things, contemporary Americans live on myths that are portioned out to them
by the ubiquitous media. This is so even in a society where everybody can
tell you how terrible it was that Goebbels was "a master of propaganda" in
his manipulation of the German people. Many people think it a virtue to
decline to see the propaganda for what it is, and those who do recognize it
have minimal ways to be heard. A question of vital significance today, as in
every century, is: What is the status of truth and of truth-seeking in our
time?
. Another example
is that many institutions are not what they hold themselves out to be. If
lip-service to "excellence" were the key to a good education, the American
public school system and institutions of higher learning would be the finest
in the world. In most American public universities, "mission statements"
make constant reference to excellence while at the same time great stress is
placed on "retention" of thousands of students who were admitted on an "open
admissions" basis and who aren't qualified to do college work.
I was struck by
this 40 years ago when I was in the Marine Corps. The Corps' outer
persona differed immensely from its inner reality. Esprit de corps,
which the image proclaimed as so important, counted for nothing in the Corps
itself, where enlisted men were treated as though they were in the
penitentiary. (To point out this abuse is not to diminish in the slightest
the sacrifices that so many valiant men have made in the Marine Corps.)
Earlier, we saw how the legal profession departs from its ideals. It should
be a profession noted for its courage, honesty, and ethics, but the public
has good reason not to see it that way today.
. The same thing
occurs in everyday life. On the street behind our house, drivers speed by in
insouciant disregard of the speed limit. If we were able to talk with those
drivers, we would find them ordinary people with all the wonderful
qualities, as well as foibles, of people generally.
These and
countless other examples testify to the fact that there is a substantial
disjunction between ideals and practice at almost all times and places.
Religious thinkers have historically been profoundly aware of this, which is
why so many have withdrawn into asceticism to maintain their purity.
Is there a
solution? Not entirely. To the extent there is, it may come in part through
a more subtle formulation of our principles and a continual re-energizing of
our ideals. To the extent that they are fit for bumper-sticker sloganeering,
which is the way humanity thinks of most of its principles, our ideals are
not thought out in a way that would fully lend themselves to people's
practical affairs. Considerable work remains to be done within ethics, law
and institutional theory to accomplish this subtlety. This is something that
every ideologue needs to understand as he deduces conclusions from his
limited premises. Our discussion of contemporary legal institutions has
shown how greatly they need to be reinvigorated. Much goes under the name of
"law"--which we revere in the abstract--, but not all of it deserves equal
respect.
Moreover, it
will be worthwhile to take our ideals and our often-shallow morality with
considerably greater humility than we do, realizing that there is much we
don't understand. Shakespeare's "there is more in heaven and earth, Horatio,
than is dreamt of in your philosophy" is one of the wisest insights ever
expressed. It is worth keeping in mind that the "acting man" may know some
things that thinkers have not been able to capture when formulating ideals.
This does not amount to a defense of all corner-cutting on ideals, since the
effects of that are often harmful; but sometimes the corner-cutting is the
only way to "get things done"--and bespeaks of vitality rather than of
decadence. During the many years since I left the Marine Corps, for example,
I have had occasion to reflect that perhaps those who have led men into
combat knew considerably more about what it takes to get young Americans to
face the horrors of war than I did. The Corps wasn't what it was idealized
to be, but there may (or may not) have been practical reasons for that.
This insight
has been directly pertinent to the subject of lynching. We started by
knowing that lynching is a horror. We started, too, with a secure knowledge
that extralegal justice flies in the face of law and that law commands our
respect as the bedrock of civilization. How has it turned out, then, that
there has been more to be said? Why have the ordinary people of the American
West, the South, of rural Russia, of Brazil marched to a different drummer?
It is enough to give us pause about our certainties.
NOTES FOR PART I
1. See New Republic editorials: Feb. 2, 1927, p. 289; Jan. 9. 1929,
p. 203; Jan. 15, 1930, p. 207; Jan. 7, 1931, p. 202; Nov. 25, 1931, p. 30.
2. See articles
"The Historic Dispossession of the American Indian: Did It Violate Our
Ideals?," Journal of Social, Political and Economic Studies, Fall
1991; "Issues in the American Cultural War: The World War II Relocation of
the Japanese-Americans," Journal of Social, Political and Economic
Studies, Spring 1993; "Kent State Revisited," Journal of Social,
Political and Economic Studies, Summer 1993; "The Hollywood Blacklist
in Historical Context," Journal of Social, Political and Economic
Studies, Fall 1993; "Sudoplatov's Bombshell: The J. Robert Oppenheimer
Case Revisited," Conservative Review (a forthcoming summer issue in
1994).
3. Dwight D.
Murphey, Understanding the Modern Predicament (Washington:
University Press of America, 1982).
4.
James Elbert Cutler,
Lynch-Law An Investigation Into the History of Lynching in the United States (Montclair, NJ: Patterson Smith, 1969).
5.
Frank Shay,
Judge Lynch, His First Hundred Years (Montclair, NJ: Patterson
Smith, 1938; reprint in 1969), pp. 23-5.
6. Shay,
Judge Lynch, p. 18.
7. Shay,
Judge Lynch, p. 19.
8. Cutler,
Lynch-Law, pp. 36-8, 43.
9. Cutler,
Lynch-Law, p. 72.
10. Cutler,
Lynch-Law, p. 79.
11. Cutler,
Lynch-Law, pp. 86-8.
12. Shay,
Judge Lynch, pp. 49-51.
13. Cutler,
Lynch-Law, p. 127.
14. John W.
Caughey, Their Majesties The Mob (Chicago: University of Chicago
Press, 1960), p. 8.
15. Cutler,
Lynch-Law, p. 134; Wichita Eagle, May 27, 1994.
16. Cutler,
Lynch-Law, p. 151.
17. Cutler,
Lynch-Law, pp. 151-2, 161, 172, 171, 170, 179-81.
18. Cutler,
Lynch-Law, pp. 190-1.
19. National
Association for the Advancement of Colored People, Thirty Years of
Lynching in the United States, 1889-1918 (New York: Negro Universities
Press, 1969), p. 29.
20. Robert L.
Zangrando, The NAACP Crusade Against Lynching, 1909-1950
(Philadelphia: Temple University Press, 1980), pp. 6, 7.
21. Richard
Maxwell Brown, Strain of Violence (New York: Oxford University
Press, 1975), p. 155.
22. Wichita
Eagle for July 13, 1993; July 16, 1993; Oct. 23, 1993; National Right
to Work Newsletter, Oct. 1993.
23. Time-Life
Book editors, The Wild West (New York: Warner Books, Inc., 1993).
24. Cutler,
Lynch-Law, p. 180.
25. Caughey,
Their Majesties, pp. 14, 4.
26. Caughey,
Their Majesties, pp. 89, 93, 94; Shay, Judge Lynch, p. 68.
27. Shay,
Judge Lynch, p. 68; Brown, Strain of Violence, pp. 176, 22,
135-9; Caughey, Their Majesties, pp. 62, 63.
28. Brown,
Strain of Violence, p. 150.
29. Roger D.
McGrath, "Treat Them to a Good Dose of Lead," Chronicles, Jan.
1994, pp. 16-19.
30. Thomas D.
Clark and Albert D. Kirwan, The South Since Appomattox (New York:
Oxford University Press, 1967), pp. 22, 23.
31. Clark and
Kirwan, Since Appomattox, p. 86.
32. E. Merton
Coulter, A History of the South: Vol. III, The South During
Reconstruction 1865-1877 (Baton Rouge, La.: Louisiana State University
Press, 1947), p. 49.
33. Thomas D.
Clark, ed., The South Since Reconstruction (Indianapolis: The
Bobbs-Merrill Company, Inc., no year given), p. 313; Edward L. Ayres,
Vengeance and Justice (New York: Oxford University Press, 1984), pp.
232, 252.
34. Stefan T.
Possony, ed., Lenin Reader (Chicago: Henry Regnery Co., 1966), p.
202.
35. Clark and
Kirwan, Since Appomattox, p. 41.
36. George C.
Wright, Racial Violence in Kentucky 1865-1940 (Baton Rouge, La.:
Louisiana State University Press, 1990), pp. 8, 41.
37. Mary
Hartman and Elmo Ingenthron, Bald Knobbers: Vigilantes on the Ozarks
Frontier (Gretna, La.: Pelican Publishing Company, 1988), pp. ix, 16,
8, 94, 173, 189.
38. Brown,
Strain of Violence, pp. 160-1.
39. Jacquelyn
Dowd Hall, Revolt Against Chivalry (New York: Columbia University
Press, 1993), 149; Ayres, Vengeance, pp. 243, 240.
40. Cutler,
Lynch-Law, pp. 180, 181.
41. Dennis B.
Downey and Raymond M. Hyser, No Crooked Death (Urbana, ILL:
University of Illinois Press, 1991), pp. 15, 140, 35, 126.
NOTES FOR PART II
1. Cutler,
Lynch-Law, p. 1.
2. Cutler,
Lynch-Law, p. 3.
3. Cutler,
Lynch-Law, pp. 4, 5.
4. Shay,
Judge Lynch, p. 17.
5. David
Weisburd, Jewish Settler Violence: Deviance as Social Reaction
(University Park: The Pennsylvania State University Press, 1989), pp. 70,
73, 78, 84; Wichita Eagle, Sept. 28, 1993, and Dec. 25, 1993.
6. Wichita
Eagle, Aug. 25, 1991.
7. Wichita
Eagle, Dec. 5, 1993.
8. Wichita
Eagle, Jan. 4, 1994.
9. Wichita
Eagle, Jan. 1, 1994.
10. Hall,
Revolt, p. 141.
11. Arthur F.
Raper, The Tragedy of Lynching (Chapel Hill: The University of
North Carolina Press, 1933), p. 19.
12. Downey and
Hiser, No Crooked Death, pp. 6, 141.
13. Donald L.
Grant, The Anti-Lynching Movement: 1883-1932 (San Francisco: R and
E Research Associates, 1975), p. 1.
14. Zangrando,
NAACP Crusade, p. 42.
15. Wichita
Eagle, Oct. 25, 1992.
16. Cutler,
Lynch-Law, p. 205; Raper, Tragedy, p. 33.
17. Jane Addams
and Ida B. Wells, Lynching and Rape: An Exchange of Views (New
York: American Institute of Marxist Studies, 1977), p. 33; Cutler,
Lynch-Law, p. 168 and facing page to p. 177.
18. Clark,
Since Reconstruction, p. 303.
19. Cutler,
Lynch-Law, p. 179; Zangrando, NAACP Crusade, pp. 7, 28;
Wright, Racial Violence in Kentucky, pp. 26, 53, 69.
20. Shay,
Judge Lynch, p. 131.
21. Wright,
Racial Violence in Kentucky, p. 98.
22. Shay,
Judge Lynch, pp. 82, 83; Coulter, During Reconstruction, p.
50.
23. Grant,
Anti-Lynching Movement, p. 111.
24. Zangrando,
NAACP Crusade, p. 135.
25. Zangrando,
NAACP Crusade, pp. 4, 205; Grant, Anti-Lynching
Movement, p. x.
26. Raper,
Tragedy, p. 51; Cutler, Lynch-Law, p. 252.
27. See, as to
the Ukraine famine, my article "Lest We Forget (or Never Really Know): The
60th Anniversary of Soviet Communism's Deliberate Murder of Millions by
Starvation," Conservative Review, Oct. 1992, pp. 38-44;
Newsweek, June 2, 1986; AIM Report, August 1993.
NOTES FOR PART III
1. Wichita
Eagle, Sept. 9, 1993.
2. The culture
of honor is discussed at length in Bertram Wyatt- Brown, Southern Honor
(New York: Oxford University Press, 1982).
3. Otto
Scott's Compass, P.O. Box 1769, Murphys, CA 95247, Oct. 1, 1993;
Caughey, Their Majesties, p. 81.
4. Wichita
Eagle, Feb. 27, 1994, and May 10, 1994.
5. Wichita
Eagle, Aug. 30, 1992; June 26, 1993, Sept. 30, 1993, Jan. 3, 1994, Jan.
6, 1994, and Jan. 17, 1994.
6. McGrath
article, Chronicles, Jan. 1994, p. 18.
7. Wichita
Eagle, May 6, 1994.
8. Wichita
Eagle, July 14, 1993, and Nov. 19, 1993.
9. Human
Events, June 10, 1994; Wichita Eagle, July 13, 1993.
10. Wichita
Eagle, Jan. 3, 1994.
11. Wichita
Eagle, Oct. 30, 1993.
