The Story of Civil Liberty in the United States

by Leon Whipple (more about this book and author)

Chapter 5: Race Problems and Civil Liberty
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Subsection links:

 

WHAT liberty is accorded minority races among the people of the United States? The question affects chiefly the native Indian and native-born Negro, and the aliens living among us.

The liberties given to aliens are not constitutional, but are based on international law, on treaties and on the power of the home-land to protect these far away rights. Our history shows how these factors were strengthened by the ideas of democracy, equality, and the rights of man; and by a pride in affording an asylum to political and religious refugees. And how often we forget that we were all once aliens in the land possessed by the Indians.

In spite of these ideas minority races in the United States have enjoyed only the liberty indicated by the general principle: he who has power has liberty. Aliens backed by a great power at home, have enjoyed our best brand of liberty—often more than native citizens. But the weaker races—especially the Indians, Negroes and Chinese—because of economic as well as race antagonism, have suffered persecution of an extent and brutality unexampled in our history. The record is too long to be more than sketched.

AMERICAN LIBERTY FOR THE AMERICAN INDIAN

The colonial Indians had what liberty they could defend against invaders. The conflict was tempered by occasional friendship and tolerance where the land-hunger of the white was not too great, and where zeal for the Indian's salvation encouraged charity. Quaker gentleness provided for example in an ordinance of 1681:
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That the Indians shall not be abused … but have liberty to do all things relating to improvement of their ground and providing sustenance for their families that the planters shall enjoy.

Generally however the Indian had no rights and few privileges. When the Union was formed the single mention of him in the Constitution assigns him the status of the Negro. (Article I, section 2, clause 111.) Since then, he has had no real liberty either as a resident in the United States or as a citizen of his own presumably autonomous tribe. When he was ceded along with land to the United States by foreign powers no mention of his rights was made. He has been an anomaly—neither in the nation nor out of it, neither citizen nor alien. Though his own nations were destroyed because of their fierce love of liberty, he has known only the supervised liberty of a dependent. He passed early into the ill-defined state of a “ward of the nation,” and was never recognized as a citizen. The treaties with his tribes were never respected. They were mere bargains over property and secured no rights to the Indian. The determining factors were force, greed, and fraud.1

The Indians have suffered ceaseless exploitation, robbery, violence and murder. They have suffered as “inferior races” always suffer, by a lack of bodily safety, freedom of movement, protection against violence or against the law itself when accused of crime…. The illegal and selfish spoliation of their lands by the government, by lawyers, politicians, ranchmen, everybody, does not fall within our province. We need not go into the records of injustice to the Indians. The case can be summed up by generalizations such as:

The history of the Government's connection with the Indians is a shameful record of broken treaties and unfulfilled promises.2

There is not among the 300 bands of Indians, one which has not suffered cruelly at the hands of the government or the white settlers…. The tales of the
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wrongs, oppressions, the murders 01 the Pacific Slope Indians in the last thirty years would be a volume in itself, and is too monstrous to be believed. It makes little difference, however, where we open the record of the history of the Indians, every page and every year has its dark stain.3

The Indian is the only human being within our territory who has no individual right in the soil. He is not amenable to or protected by, the law. The executive, the legislative, the judicial departments … recognize that he has a possessory right in the soil; but his title is merged in the tribe—the man has no standing before the law.4

Here is a concrete example:

A few years ago, former Commissioner Leupp arbitrarily ordered the confinement of eight Navajos in the military prison at Fort Huachuca, Arizona, at hard labor, for an indeterminate period. Although charged with being bad men, they had been given no trial, military or civil. Commissioner Leupp … stated in effect that those Indians would be held … until he was ready to release them, “law or no law.” … The Association instituted habeas corpus proceedings. The Arizona supreme court … decided that the commissioner was wrong, and that an Indian could not be deprived of his liberty without due process of law. The Navajos were subsequently released and returned to their reservation.5

Within the tribe the Indian had no individual status; outside in relation to the whites, he had duties. The conscription of the Indian in the World War expresses these. Slowly the Indian is now becoming a citizen, and his survivors will probably enjoy the average liberty of minority races in the American commonwealth.

LIBERTY IN OUR ISLAND POSSESSIONS

Similar problems have arisen in our island possessions. The natives have not been usually in control of their affairs, although they had previously achieved a status in relation to European
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or native rulers. Though called “backward” races, they are often well educated and aspire to self-government. Their aspirations have fostered demands for civil rights—freedom of speech, assemblage and the press. They ask whether the Bill of Rights follows the flag; whether constitutional guarantees protect native Porto Ricans, Filipinos and Virgin Islanders. There has not yet been a definition of what rights these peoples have. There is a persistent disinclination to give them any, because of the great probability they will use them for agitation against American rule in favor of independence. The usual mixture of military with civil government further complicates island rule, and hampers civil liberty. Exploiting economic interests also restrict liberty. Numerous cases have arisen in Porto Rico, Haiti, San Domingo, Samoa, and the Virgin Islands-and a few in the Philippines. In all of these places there is continuous agitation against either the fact or form of American rule.

THE NEGRO AND CIVIL LIBERTY

The Negro presents the most important “race problem” for civil liberty in the United States. He is first of all of a very different color and origin. He has passed from the status of an imported African slave, first landed in Virginia in 1619 to that of a so-called free citizen, though in fact with a very inferior position. He forms a considerable and increasing part of the population—now about one-tenth. He is not a ward like the Indian nor an alien who can be deported. These ten million nominal citizens are entitled to all the constitutional guarantees, some of which were especially framed for their protection. But these do not so apply, and over a large section of the country they are deliberately and studiously denied. The Negro is in reality a sort of half-citizen—a citizen on probation to the whites.

THE COLONIAL PERIOD

In this period (1619–1776) the English Colonists recognized no rights for the Negro slaves.
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As a slave the negro had none of the ordinary civil or personal rights of the citizen. In criminal cases, he could be arrested, tried, and condemned with but one witness against him, and he could be sentenced without a jury…. Zealous for religion as the colonists were, they made little attempt to convert the Negroes in the earlier decades of the 17th Century, there being a very general opinion that neither Christian brotherhood or the law of England would justify the holding of Christians as slaves. In course of time, however, they lost their scruples, and it became generally understood that conversion and baptism did not make the slaves free, Virginia in 1667 enacting a law to that effect.

The fear of Negro insurrection caused violent measures to be taken. In New York in 1712, twenty-four Negroes were put to death, some in cruel ways, and in 1711 on the mere rumor of an intended rising occurred an organized persecution of the blacks.

Every one of the eight lawyers in town appeared against the Negroes, who had no counsel and were convicted on most insufficient evidence. Fourteen of the unfortunate people were burned at the stake, eighteen were hanged, and seventy-one deported.6

This has a modern ring though distinguished by the fact that the victims had the form of a trial. The Negroes' status was ordinarily beyond the reach of any civil process.

The negro slave in the eyes of the law was a chattel, could be bought and sold, bequeathed by will, given away, mortgaged, or seized in satisfaction of a judgment. Not a civil right of any kind was his. He could not make a contract, or give testimony against a white man in any court, nor acquire property in any way. Whatever he found, whatever he made, whatever was given to him, reverted at once to his master. To teach a slave to write was not allowed anywhere; to teach him to read was allowed in a few colonies.7

THE CONSTITUTIONAL PERIOD

This period (1776–1863) may be so called though slavery was never explicitly recognized in the American constitutions. No provision on the subject appears in any State constitution except in Delaware's of 1783. The Federal Constitution implicitly recognized slavery in providing that representation shall be determined on the whole number “of free persons, three-fifths of all others.” (Article I, section 11, clause 3.) It permitted the importation of slaves until 1808. In the “free States” where the Negroes were not numerous or economically important they advanced to a relative liberty. The Supreme Judicial Court of Massachusetts held that the provision in the State Bill of Rights that “all men are born free and equal” prohibited slavery. The status varied:

In New England slaves were regarded as possessing the same legal rights as apprentices, and if masters abused their authority, they were liable to indictment. Each State had its own slave code … and it is difficult to make general statements about the legal side…. If he did not get what was due him, he had no redress, for he had no legal voice. His marriage was not considered binding and he was not supposed to have any morals.8

Mob violence against the Negro was ferocious in the “free States” because the Negro was not a valuable chattel but a competitor with white workers. The fields of employment were limited rather by social control than by law. Education was generally denied, Negroes being refused admission to schools and even theological seminaries.

In the Southern States the Negro had no rights and no liberties. The laws penalized teaching slaves to read and even talking to them.9 In South Carolina the law authorized the arrest of English sailors under the English flag if the sailors were black and labor was needed in the rice swamps. Owners had absolute control of the slave's body; and treatment ranged from kindness to cruelty.
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The summary execution of negroes, did not, however, become a serious evil previous to the Civil War. So long as the negroes were valuable as slaves it was a direct economic loss to the slaves-holder if any able-bodied slaves were put to death. In general it was only in cases of real or supposed conspiracy or insurrection that negroes were killed in a summary manner. There was of course a regular slaughter in such cases as Nat Turner's rebellion, when scores of negroes, innocent or guilty, were hunted down and killed.10

No record of cases during this period is attempted for the reason well stated in Gilbert Stevenson:

A greater reason for the futility of discussion of race distinctions before 1865 is that prior to that date the Negro was considered to have no rights which the white man was bound to respect. The Dred Scott decision in 1857 virtually held that a slave was not a citizen or capable of becoming one.11

THE RECONSTRUCTION PERIOD

Neither Slavery nor involuntary servitude, save as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction.

Thirteenth Amendment to the Constitution

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Fourteenth Amendment to the Constitution

These two new additions to the Federal Bill of Rights covered most of the questions concerning civil liberty during
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the Reconstruction Period, here roughly fixed between the Emancipation Proclamation, January i, 1863, and 1883, when the Civil Rights Bill of 1875 was declared unconstitutional.12

The Thirteenth Amendment is clear enough. It abolished slavery. There has been no return to this institution unless peonage for debt in the South may be so called. It freed the Negro, and left him just there. The Fourteenth Amendment is the effort to assure his political freedom by forbidding States to pass laws limiting his civil rights. It took the Fifteenth Amendment to give him the right to vote.13

THE FOURTEENTH AMENDMENT

The Fourteenth Amendment is of prime importance to civil liberty. “Fairly considered, these amendments may be said to rise to the dignity of a new Magna Carta.” Thus speaks Justice Swayne of the United States Supreme Court. A commentator adds: “The Fourteenth Amendment nationalized the whole sphere of civil liberty…. Our Constitutional history during years (to 1898) with comparatively few exceptions may be said to be but little more than a commentary on the Fourteenth Amendment.”14

The guarantee of life, liberty, and property under the law should indeed be a new magna carta, but the Supreme Court has not so interpreted it save as it affects property. Its protection was in law extended to all who came within the rule, not limiting it to the negroes who had occasioned it.

But the Supreme Court has not interpreted it in the interest of civil liberty. The principal report of the Federal Commission on Industrial Relations (1915) says:

We are informed by counsel who have examined the cases involved that the fourteenth amendment has had no appreciable effect in protecting personal rights. According to the existing decisions, the due-process clause does not guarantee the right of trial by jury, nor does it necessitate indictment by grand juries, nor has it restrained arbitrary arrests and imprisonments on the part of the State governments when men are kidnapped in one State
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and carried into another…. It is quite clear that it not only has failed to operate to protect personal rights, but has operated almost wholly for the protection of the property rights of corporations. (Pages 47, 49.)

The Fourteenth Amendment attempted, (1) to establish the fact of citizenship in the United States as well as in the States; (2) to prevent States from taking away the privileges or immunities belonging to national citizenship; (3) to reaffirm the already stated rights ot the citizens in the law of the land, and to equality before the law. (See Constitution of the U.S. III, ii, 3 and Amendments V and VI.) It does not, however, define “privileges and immunities” nor does it enforce the provisions of the Bill of Rights.

In Maxwell versus Dow (176 United States Reports 581) the court emphasized the doctrine that the adoption of the fourteenth amendment had not had the effect of making all the provisions contained in the first eight amendments operative in the State courts … on the ground that the fundamental rights protected by these amendments are, by virtue of the fourteenth amendment to be regarded as privileges or immunities of the citizens of the United States.15

On the whole the Civil War amendments did not have an appreciable effect on the general principle of civil liberty under the Constitution. Let us turn then to the Negro after tie Civil War.

THE NEGRO UNDER RECONSTRUCTION

The freedom declared in the Emancipation Proclamation had no effect on the status of the Negro in the South until the rebellion was defeated. Then on December 18, 1865, the thirteenth amendment was added to the Constitution. The new state constitutions adopted in the South during the next five years, mostly under some sort of Northern influence, also prohibited slavery. For example the Georgia constitutions of 1865 (article I, section 20) and of 1868 declared
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that: “The social status of the citizens shall never be the subject of legislation.” Further national action to assure the newly freed slave equal rights as a citizen was taken in the first Civil Rights Act, passed over the President's veto in April, 1866. Meanwhile the various new governments attempted to handle the problem of the Negro—masterless, without land, wandering over the country. These legislative efforts are important as fixing an attitude toward the Negro's liberty that has influenced his status ever since.

The slave codes were obsolete; the few laws for free negroes were not applicable to the present conditions; most laws and codes were expressly for whites. The task of the law-makers was to express in the law the transition from slavery to citizenship; to regulate family life, morals and conduct; to give the ex-slave the right to hold property, the right to personal protection, and the right to testify in the courts, … to protect the whites in person and property from the lawless blacks. In general the laws relating to whites were extended to the blacks…. But one principle was never lost sight of, viz., that the races were unlike and unequal and should be kept separate…. The sources of these laws are found in the ante-bellum laws for free negroes, in the Northern and Southern vagrancy laws, in the freedmen's codes of the West Indies, in the Roman law of freed-men, and in pure theory to some extent, and to a great degree in the regulations for blacks made by the United States army and treasury officials in 1862–1865 and in the Freedmen's Bureau rules…. The laws were never in force in any of the States…. Since the downfall of the Reconstruction régime, the essential parts of this legislation have been re-enacted in the Southern States, especially the laws relating to the definition of race, to the separation in schools, et cetera….16

The spirit of these “Black Codes” is expressed as follows:

Almost every act, word, or gesture of the negro, not consonant with good taste and good manners, as well as good morals, was made a crime or misdemeanor for which
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he could first be fined by the magistrate and then be consigned to a condition of almost slavery for an indefinite time, if he could not pay the bill.17

The foundation of peonage for debt to the state (fines) or to private persons is here early disclosed; as well as the cleavage of races which could not be obliterated by legislation. To protect the Negro other national legislation was enacted: on May 1, 1870, a revision of the Civil Rights Bill of 1866, which had proved ineffective; the guarantee of political rights in the Fifteenth Amendment, proclaimed March 30, 1870, and a more drastic Civil Rights Bill in March, 1875 (18 Statutes at Large 335). The first two sections of this were declared unconstitutional in 1883, and here ended the Reconstruction efforts of the Nation.18

Meanwhile in the South despite Federal laws and “black codes” the Negro was denied even bodily safety and free movement by the organized violence of the southern whites. This systematic terrorization is the history of his “liberty” for a decade after 1866. The first expression of it was the Ku Klux Klan. The Klan arose from fear of Negro dominance. It substituted a reign of violence for law, terrorized the blacks, and abrogated every liberty of the new citizen. The evidence has been gathered in official form and need not be restated here.19

These conditions lasted into the seventies, and include murder, whippings, terrorism, deportation, and every form of violent coercion.

The movement lasted under one form or another until the close of Reconstruction, and the lynching habits of to-day are due largely to conditions, social and legal, growing out of Reconstruction.20

NEGRO MASSACRES

The “knight” of the Ku Klux Klan was in some States merged into the “regulator” whose duty it was to “keep the Negro in his place,” scared and defenceless, and by murder
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and terrorism to prevent him from voting, or to make him vote “right.” In Louisiana and a less degree in other states between 1866 and 1876, thousands of Negroes were massacred by armed bands. The details of these horrors are to be found in government reports. The general outline is indicated by this statement to President Grant by General Philip Sheridan.

Since 1866 nearly 3,600 persons, a great majority of whom were colored men, have been killed and wounded in this state (Louisiana). In 1868 official records show 1,885 were killed and wounded. From 1868 to the present time, 1875, no official investigation has been made and the civil authorities in all but a few cases were unable to arrest, convict, or punish the perpetrators…. There is ample evidence to show that more than 1,200 persons have been killed and wounded during this time on account of their political sentiments. Frightful massacres have occurred in the parishes of Bossier, Caddo, Atahoula, St. Bernard, St. Landry, Grant and Orleans…. In St. Landry in 1868 in a massacre of three to six days, 200 to 300 colored men were killed…. The total summing up of murders, maimings, and whippings for political reasons in September, October and November, 1868, as shown by official sources is over 1,000….21

In a report on Negro atrocities, President Grant on December 6, 1876, transmitted to Congress a report listing persons maimed, whipped or murdered and the perpetrators of the crimes for the period 1866–1876. It covered ninety-eight pages of fine print averaging a victim a line, and the list was estimated to include about 4,000 cases. Another report in two volumes by a Congressional Committee of which the late John Sherman was chairman deals with the Louisiana election frauds in connection with the Hayes-Tilden contest. One case will show their nature:

November 23.

Benjamin Morgan, being sworn, says: I am the coroner of the Parish of East Baton Rouge…. I was informed on April 13, 1876, that two men had been killed. I
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owent to hold an inquest. I found the body of Jerry Myers hanging by the neck, dead. I collected a jury and cut him down. The evidence showed that the deed had been committed by a party of bull-dozers, who hung him in my opinion because he was a Republican. Within 100 yards of the house I found Samuel Myers … shot in the back with six balls … and dead. Both the deceased were honest, hard-working farmers; neither of them held any office, and had for the last five years put the first bale of cotton on the market in the parish. On the 17th I received a letter through the Post Office:

Mr. Ben Morgan, Coroner:

You will please bear in mind that your absence is required in the county, and I further inform you that if you are caught therein any more your fate shall be as those you came to hold your inquest over.

Yours truly,

Captain of Regulators.22

This same report lists these murders alleged to have been committed by white regulators in East Baton Rouge Parish in 1876:

Jan. 5—Taylor Hawkins, murdered; Jan. 6—Major Selve, hanged; Jan. 14—John Jackson, shot; Jan. 16—George Washington, shot, then burned with oil; Feb. 3—Peter Henderson Painter, shot to death; Feb. 16—Johnson Stewart, shot dead; Feb. 17—Charley Robertson, hanged; April—Job Johnson, burned to death in his house and shot. Occurred in the 11th Ward where he was constable. Alice Gilbert was roped and threatened with hanging. April 13—W. Y. Payne taken from house, rope put around his neck, the other end tied to a saddle, and then dragged until he died when his body was thrown in the River. Sept. 1—Sanford Smith, Paul Johnson, Arch Stewart, shot to death.

One of the bloodiest riots on record occurred in St. Landry Parish where the Ku Klux Klan killed and wounded over 200 Republicans, hunting and chasing
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them two days and nights through fields and swamps. Thirteen captives were taken from jail and shot, and a pile of 25 dead bodies was found buried in the woods.23

Much of this evidence is from politically partisan investigators who were seeking political capital and trying to make a case.24 But allowing even a generous discount the record is black. The so-called exodus of Negroes to certain Northern States in 1876–1878 showed the force driving the Negro from his home. A Congressional committee learned that a committee of 500 Negroes had secured the names of 98,000 possible emigres. This investigating committee declared:

Nearly all the witnesses gave as the causes of the exodus: the feeling of insecurity for life and property; the denial of political rights as citizens; long continued persecution for political reasons; the system of cheating; the inadequacy of the school system; and the fear of being reduced to peonage.25

To sum up the Reconstruction record the fact is perfectly clear that with the passions of war still running strong with political blunders on both sides, with race prejudice and economic re-adjustment, the Negro in the South had no liberty.

NEGRO LIBERTY IN OUR DAY

The period between 1883 and 1920 is one in which the Negro has achieved a greater measure of civil rights. But in spite of a constant struggle and help of his friends, his status is still far from the level of personal and constitutional liberty enjoyed by the most disadvantaged whites. The struggle may be described under three heads: first, for bodily safety against illegal violence; second, for civil and political rights with equality before the law; third, for such social and economic rights as free education and a free race press. Violence constitutes the larger field of attack on the Negro, with its long and shameful record of lynching and mob outrages.
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LYNCHING

During these years lynching has become a national institution and constitutes the most flagrant and, comprehensive violation of civil processes in the United States. The Negro has suffered and still suffers at the hands of lawless mobs which regard themselves as the agents of an extra-legal popular will. Back of the failure to punish lynching is an idea of “popular justice.” Says J.D. Cutler in his Lynch Law:

“In the course of this investigation into the history of lynching, it has become evident that there is usually more or less of public approval, or supposed favorable public sentiment, behind a lynching. Indeed, it is not too much to say that popular justification is the sine qua non of lynching. It is this fact that distinguishes lynching from insurrection and open warfare. A lynching may be defined as an illegal and summary execution at the hands of a mob or a number of persons, who have in some degree the public opinion of the community back of them….

In the last analysis lynch-law in this country is without any justification whatsoever. In a government founded on the idea that the ultimate power and authority shall rest with the people, and in which sufficient facility has been given to the expression of the collective will of the people so that the acts of the government, the formulation of the law, and the administration of justice ought to adequately represent this collective will, there is no tenable ground on which to vindicate the practicing of punishing criminals other than by the regularly constituted courts.”26

The alleged justifications for lynching need no discussion, the rights to trial and legal punishment are basic no matter what the offense. There is a growing agreement that action by the Federal government alone will work effectively to end lynchings. Cutler, however, puts more weight on public sentiment. He says:
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Until there is a sentiment in every community in which a lynching occurs, which will demand the punishment of those who take part, it can scarcely be expected that sheriffs will risk their lives to protect prisoners, or that prosecuting attorneys, judges, and juries, will cooperate to secure the conviction of lynchers and to make them feel the full penalty of the law.27

The number of reputed lynchings is given in this table:28

Number of White and Colored Persons Lynched in
United States, 1889–1918*

YEARS TOTAL WHITE COLORED
1889…………………… 175 80 95
1890…………………… 91 3 88
1891…………………… 194 67 127
1892…………………… 226 71 155
1893…………………… 153 39 114
1894…………………… 182 54 128
1895…………………… 178 68 110
1896…………………… 125 46 79
1897…………………… 162 38 124
1898…………………… 127 24 103
1899…………………… 109 22 87
1900…………………… 101 12 89
1901…………………… 135 27 108
1902…………………… 94 10 84
1903…………………… 104 17 87
1904…………………… 86 7 79
1905…………………… 65 5 60
1906…………………… 68 4 64
1907…………………… 62 3 59
1908…………………… 100 8 92
1909…………………… 89 14 75
1910…………………… 90 10 80
1911…………………… 71 8 63
1912…………………… 64 3 61
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1913…………………… 48 1 47
1914…………………… 54 5 49
1915…………………… 96 43 53
1916…………………… 58 7 51
1917…………………… 50 2 48
1918…………………… 67 4 63
 
  3,224 702 2,522

* Victims of the Atlanta, Ga. (1906), and East St. Louis, Ill. (1917), riots have been excluded from this and subsequent tables.

Since 1889 eleven white and fifty Negro women have been lynched. In this period 2,834 lynchings took place in the South, 219 in the North, 156 in the West and 15 in Alaska and places unknown. The Negroes lynched were 78.2 per cent of the total. The following were the crimes charged against the victims in a “low year”:

LYNCHINGS IN 1911

Murder……………………………………………….. 36
Rape……………………………………………….. 7
Attempted rape……………………………………………….. 7
Suspected rape……………………………………………….. 1
Insulting women……………………………………………….. 4
Assault to kill……………………………………………….. 3
“Prejudice”……………………………………………….. 2
Threats 1
“Desperado” ………………………………………….. 1
Robbery ……………………………………………….. 1
 
  63

The following abstracts from Thirty Years of Lynching show the variety of attacks:
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Louisiana. The fellow took fright, was followed and finally climbed a magnolia tree…. One of the pursuers went for a rope. Presently, the man deliberately slid down out of the tree, and halfway down he was shot to death. The man's clothing marked No. 43 was found to be that worn at the State Insane Asylum in a neighboring town. The insane occupant had escaped a few days before, and the helpless fellow, wandering at large, had suffered death for a crime he had not committed.29

Two innocent negroes had been shot previous to this by a posse looking for Holbert, because one of them who resembled Holbert, refused to surrender when ordered to do so.

Tennessee. Ed. Johnson, a Negro, convicted of rape and sentenced to be hanged, was granted an appeal by the Supreme Court of the United States. Johnson was in jail at Chattanooga…. A mob hanged him.

South Carolina. The mob was led by Joshua W. Ashleigh, a local member of the State Legislature, while Victor B. Cheshire, editor of a local newspaper, after taking part in the lynching got out a special edition telling about it…. The then Governor, Cole Blease, absolutely refused to use the power of his office to bring the lynchers to justice, and the Coroner's jury found that the Negro came to his death “at the hands of parties unknown.”30

Oklahoma. Marie Scott, a 17-year-old Negro girl, was lynched because her brother had killed one of two white men who had assaulted her. She was alone in the house when the men entered, but her screams brought her brother to her rescue … one of the white men was killed. The next day the mob came to lynch her brother, but as he had escaped, lynched the girl instead. No one was ever indicted for the crime.

Georgia. At Jackson, Henry Ethridge was lynched, April 26, 1912, for being active in securing recruits for
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a colony in Africa. Race prejudice is also given as the cause.

The following excerpts picture a fraction of the terrible cruelties which here characterized many lynchings.

“The lynching was devoid of the minor brutalities that frequently mark such occasions.”

“The woman was raped by members of the mob before she was hanged.”

“Before the torch was applied to the pyre, the Negro was deprived of his ears, fingers and other portions of his body with surprising fortitude.”

It was really only ten minutes after the fire was started that smoking soles and twitching of the Negro's feet indicated that his lower extremities were burning…. The Negro had uttered but few words. When he was led to where he was to be burned, he said quite calmly, “I wish some of you gentlemen would be Christian enough to cut my throat,” but nobody responded. When the fire started he screamed, “Lord have mercy on my soul,” and that was the last word he spoke though he was conscious for fully twenty minutes after that. His exhibition of nerve aroused the admiration even of his torturers.31

Mrs. Turner (a Negro) made the remark that the killing of her husband on Saturday was unjust, and that if she knew the names of the persons in the mob … she would have warrants sworn out against them and have them punished in the courts…. The mob determined to teach her a lesson…. She was captured at noon on Sunday…. Mary Turner was in her eighth month of pregnancy…. Her ankles were tied together and she was hung to the tree, head downwards. Gasoline and oil from the automobiles were thrown over her clothing and while she writhed in agony … a match applied and her clothes burned from her person…. While she was yet alive, a knife, evidently such a one as is used in splitting hogs, was taken and the woman's abdomen was cut open, the unborn babe falling from her womb to the ground. The infant, prematurely born, gave two feeble cries and
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then its head was crushed by a member of the mob with his heel. Hundreds of bullets were then fired into the body of the woman, now mercifully dead, and the work was over.32

LYNCHERS ARE NOT PUNISHED

The lynching of Negroes is the more significant since the States make no real effort to punish the lynchers.

A member of the Maryland bar writing in 1900 said that less than a dozen lynchers had even been tried for their crimes, and only two had been punished. The present writer has been able to obtain no information that would warrant the statement that as many as twenty-five persons had been convicted of a crime and punished for participating in the lynching of over 3,000 persons in the last twenty-two years.33

Here is evidence of the state of mind which leads to lynching.

Judge Charles H. Brand ordered Allen brought to Munroe for trial although it was known that the citizens had organized a mob to lynch him. The judge was offered troops by the Governor to protect the prisoner, but refused…. The same judge had refused to ask for troops on a previous occasion, saying that he would “not imperil the life of one man to save the lives of a hundred Negroes.”34

In North Carolina on one occasion heroic efforts were made to prevent a lynching and punish lynchers:

Realizing that if a lyncher is permitted to remain unpunished the decency of the community is greatly endangered, Judge B. F. Long … sentenced fifteen white men to serve from fourteen months to six years in prison. The men were found guilty of attempting to lynch Russell High, a prisoner in the city jail…. The fifteen men were a part of a mob that for a night and a
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morning terrorized Winston-Salem in their effort to lynch a black man, innocent of the crime of assault for which he had been arrested on suspicion … and incidentally killed four people, one a little white girl. The Mayor of the city acted with promptitude and courage, calling out the Home Guards and the fire department … nearly every policeman was hurt. The Governor rushed troops from Camp Green at Charlotte. For many days cannon guarded the streets.35

RACE RIOTS

Race riots are more than mass lynchings; they frequently become local wars against Negroes. They involve murder, whipping, deportation and destruction of property. The elements in such conflicts are too complex to be given here, and the list too long. They are not confined to the South. Some of the most serious have been in Springfield, Illinois, Chicago, and in Washington, D. C. Perhaps the most shocking of modern race riots occurred in East St. Louis, Illinois, in 1917. It is summed up thus:

On the 2d of July, 1917, the City of East St. Louis in Illinois added a foul and revolting page to the history of all the world … a mob of white men, women and children burned and destroyed at least $400,000 worth of property belonging to both whites and Negroes; drove 6,000 Negroes out of their homes; and deliberately murdered by shooting, burning and hanging between one hundred and two hundred human beings who were black.36

The disastrous effects of such riots have been officially recorded in a report on the Atlanta riots in August, 1906, by a white committee headed by W. G. Cooper, secretary of the Chamber of Commerce, and George Muse, a prominent merchant. The sensational exaggeration of reported attacks on white women brought on a clash that lasted several days, with this result:
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  1. Among the victims there was not a single vagrant.
  2. They were earning wages in useful work up to the time of the riot.
  3. They were supporting themselves and their families or dependent relatives.
  4. Most of the dead left small children and widows, mothers and sisters, with practically no means and very small earning capacity.
  5. The wounded lost from one to eight weeks' time, at 50 cents to $4.00 a day.
  6. About seventy persons were wounded and among these there was an immense amount of suffering … in some cases prolonged and excruciating pain.
  7. Many of the wounded are disfigured and many are permanently disabled.
  8. … most of them were honest, industrious, and law-abiding citizens and useful members of society….
  9. Of the wounded ten are white and sixty colored. Of the dead, two are white and ten colored; two female and ten male….
  10. It is clear that several hundred murderers or would-be murderers are at large in this community.
  11. Although less than three months have passed … events have already demonstrated that the slaughter of the innocent does not deter the criminal classes from committing more crimes. Rape and robbery have been committed in the city in that time.
  12. The slaughter of the innocent drives away good citizens. From one small neighborhood, twenty-five families have gone.
  13. The crimes of the mob include robbery as well as murder … the property of innocent and unoffending people was taken … the victims, both men and women, were treated with unspeakable brutality.
  14. All this sorrow has come to people who are absolutely innocent of wrong-doing.37

For these crimes, the Grand Jury indicted sixty Negroes for murder and sixteen whites for riot.
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SELF DEFENCE BY THE NEGRO

The cases cited show that the Negro cannot expect protection from violence by the civil or military authorities. Practically their only protection is by using arms in self-defence, which means miniature civil war. Yet in spite of the Second Amendment guaranteeing the right to keep arms and many similar State guarantees, he is not permitted to defend himself. “The right of the people to keep and bear arms shall not be infringed” does not apply to the Negro. The local police power in most Negro sections is so exercised that Negroes cannot keep arms for defense against attack. Pawn-shop regulations and laws against carrying concealed weapons are used to disarm them. Nor are Negroes allowed to organize military companies even in sections where the race predominates. The Southern states keep Negroes out of the state militia. Georgia in 1905 permanently disbanded all colored soldiers in the State militia.38 In Connecticut, West Virginia, and New Jersey, Negro troops are kept separate from white. There is no objection to Negro soldiers in the Federal Army, and in the drafts of 1917–1918 a larger percentage of the Negro Race than of the White Race was accepted for service.

THE NEGRO'S RIGHT TO LAW

Not only does the Negro fail to get the protection of the law, but he is continuously the victim of police persecution. He is arrested on what amount to general warrants—“round-ups for the Chief”—in which vagrancy, disturbing the peace, and other general offences are invoked to harass him. Negroes are frequently given the “third degree,” beaten, and deported by being “given hours.” For example:

In Atlanta, on October 15, thirty-seven laborers were arrested at night in their lodging-house as “vagrants.” In Texas, five laborers were arrested as vagrants, and proved their steady, hard jobs. The Galveston “Tribune” says: “But the State chose to prosecute under a different portion of the law, alleging loitering around a house of
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ill-fame. The court explained, as it had done before, that a person can be a vagrant, yet be steadily employed, the law being general in its effect and covering many points upon which a conviction can be had on a charge of vagrancy.39

Although no law prevents Negroes from entering any park in Indianapolis, they are excluded from at least one of them by the danger of being assaulted by so-called “bungaloo gangs.” In many parts of the country, both North and South, the Negro's coming and going is ordered by law or threatened violence.

In three places, at least, in North Carolina, a Negro is not allowed to stay over night—Canton, Haywood County, Mitchell, and Madison Counties … Negroes may work unmolested all day, but, if they linger after nightfall, they are reminded that it would not be healthy for them to remain during the night.40

At Syracuse, O…. and Lawrenceburg, Ellwood, and Salem, Ind., Negroes have not been permitted to live for years. If a Negro appears, he is warned of conditions, and if he does not leave immediately he is visited by a crowd of boys and men and forced to leave. A farmer who lives within a few miles of Indianapolis told me of a meeting by 35 farmers … in which an agreement was passed to hire no Negroes, nor to permit Negroes to live anywhere in the region.41

From Atlanta “Georgian,” March, 1907. Peter Zeigler, a Negro, was last night escorted out of town by a crowd of white men. Zeigler has been here for a month and passed himself off as a white man. A visiting lady recognized him as a Negro who formerly lived in her city…. It developed regarding this news item from Albany, Georgia, that immediately after suffering the indignity of being expelled … Mr. Zeigler communicated with his friends and relatives, a delegation of whom came from Charleston … and proved to the satisfaction of every one that Mr. Zeigler was in reality a white man connected with several old families in South Carolina.42
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The effect of the law in the South is to deny freedom of movement to Negroes in certain sections. He is deported if not wanted; he is restrained from leaving if wanted. He is sent to labor either on public works or for private employers to pay off fines imposed for minor offenses. Ray Stannard Baker says:

Laws in Southern States keep men from employing Negroes to go to work in other places … to a certain extent interfering with their freedom of movement…. Many other laws have been passed designed to keep the Negro on the land, and having him there, to make him work. The contract law, the abuses of which lead to peonage and debt slavery is an excellent example…. The criminal laws, the chain-gang system, the hiring of Negro convicts to private individuals … limit liberty…. The vagrancy laws, not unlike those of the North, and excellent in their purpose, are here sometimes executed with great severity. In Alabama, the Legislature passed a law under which a Negro arrested for vagrancy must prove he is not a vagrant.43

FREEDOM OF SPEECH AND PRESS

Freedom of speech for the Negro has not been violated by law. That has not been necessary when violence or deportation are far more effective. Freedom of the Negro press has never raised a serious issue.

The race has not been militant nor radical enough to invite suppression. Intimidation kept them in order, too. The great increase of Negro publications in recent years and their growing vigor indicates the advances being made by Negroes toward independence of thought in their own problems. Stray cases may be noted of attacks on Negro editors.

Miss Ida B. Wells, colored editor of the “Free Speech” at Memphis, Tenn. had her paper suppressed because she so fiercely denounced the lynching of some young colored men and arraigned the authorities for failing to punish the lynchers.44
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For a time A. L. Manley published a Negro newspaper at Wilmington, N. C., but during a race riot in that city a number of years ago, he was driven out, and his office burned to the ground. He lived as a white man some years.45

Free speech on the Negro problem has been a more serious issue for white sympathizers than for the Negroes. This is especially true of teachers.

Professor Emory Slade was compelled to resign from Emory College in Georgia because he published an article in the “Atlantic Monthly” taking a point of view not supported by the majority of Southern sentiment…. Professor John Spencer Bassett was saved from a forced resignation from Trinity College in North Carolina after a lively fight in the Board of Trustees, which left Trinity with the reputation of being one of the freest institutions in the South…. George W. Cable, the novelist, was practically forced to leave the South because he advocated “the continual and diligent elevation of that lower man which human society is constantly precipitating,” and advocated justice for the negro.46

Harvey Jordan, professor of embryology in the University of Virginia, was called upon to resign by the press in Virginia for some biological observations concerning Negroes published in a scientific journal. He was supported by his university but gave up the line of research that embarrassed him.

Two cases of more active measures taken against white advocates of Negro rights in the South may be noted though they occur after 1917.

Austin, Texas, August 22, 1919. John R. Shillady, of New York, secretary of the National Association for the Advancement of Colored People, was severely beaten in front of a hotel here to-day and ordered to catch the first train out of town … following a meeting held with Negroes by Shillady.
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Two weeks ago local officials ordered the disbanding of a local branch of the National Association on the ground that the Association had no permit to do business in Texas…. His meeting was not interfered with….47

THE NEGRO AND “FREEDOM OF EDUCATION”

A free education is not a civil right but the problem of Negro education is so full of difficulties that some of their aspects should be at least mentioned. It involves such questions as:

Is a fair share of the taxes paid by Negroes spent on Negro education?

Shall Negroes be educated in general public schools, or if not, shall they receive equal advantages in separate schools?

Shall the co-education of whites and blacks be forbidden even in private schools?

The question of separate schools has been tested many times in the courts, and they have uniformly affirmed the right of the community to provide separate schools for different races. This is therefore not an infringement of any right guaranteed under the Fourteenth Amendment. The Negro in the South has, as yet, little access to a free education, still suffering from the slave idea of keeping the Negroes ignorant and servile.

CIVIL LIBERTY FOR ALIENS

Let us now consider the status of white aliens.

Alien immigrants to the United States have no inherent right of entry. That right may be granted by treaty, but except for such limitation Congress may debar aliens for any reason it chooses. If an alien gains entrance, he may be held, examined before an immigration official and deported by executive order. His single right is to be brought before a court on a writ of habeas corpus for examination of the basis of the deportation. But the courts always refuse to intervene unless gross abuse of executive discretion can be shown.
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Two clauses of the Constitution alone concern aliens directly:—that authorizing Congress to establish uniform rules of naturalization; and that giving the Senate and President jointly the power to make treaties.48 Naturalized aliens become full citizens but we are here concerned only with those of alien status.

The treatment of aliens depends on several factors largely outside the control of law. First, degree of difference in color and culture from the predominant Anglo-American type. The sharper the differences, the greater the race prejudice, and the consequent invasions of personal liberty. This antagonism is deep and instinctive, not to be checked by law. There is a fundamental human reaction expressed in calling a man a “dago,” “yid,” “ginney,” or “nigger.”

It denotes a consciousness of difference that common human qualities cannot quite transcend … an inheritance from the days when tribal distinctions were of profound importance in the progress of society.49

The second factor in determining the treatment of aliens is economic rivalry. The alien is generally regarded by the native worker as a competitor who may take his jobs, and undermine his standard of living. The aliens who have suffered most have been those who were imported by business interests to do hard work because they were cheap. The Irish suffered until they became a political force; the Chinese coolie suffered until he was excluded altogether; the Italian and Southeastern European suffers serious disadvantages today.

The third factor is religious antagonisms. These usually are a cloak for race and economic antagonisms, and are unimportant.

White Europeans backed by strong governments have suffered comparatively little in the United States. When they do, apology and reparation usually follow quickly on the demand of their governments. English-speaking aliens for instance have never suffered serious disadvantages here. But Latin and other European races have. As early as 1850–1851
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there owere anti-Spanish mobs, especially in New Orleans.50 In 1891, in the same city, eleven Italians were killed in a race riot. The United States Government, though denying any legal international obligation, paid a damage claim.51 Sporadic cases of this sort still occur, as witness the killing by mobs in Illinois of Albert Piozza, October 12, 1914, and of Joe Spreanza, June 12, 1915.52 Jews have endured an unrecorded amount of intense social discrimination, business boycott and petty violence. They have had to endure them without appeal to home governments who have rarely concerned themselves with their Jewish nationals. Their economic power alone has prevented worse treatment.

The problem of the alien has been difficult along the Mexican border. Mexicans in the United States have suffered grave injustices, but singularly little attention has been paid to them. Twenty-one Mexicans were lynched in Texas alone in 1915. This is a high record due to the strained relations between the countries at the time, but the lynchings of Mexicans every year must reach a considerable number.53

As far back as the early fifties, Mexicans were excluded from the mines of California and deported along with the Chinese. The problem is complicated by the factors of border brigandage and violence by Mexicans, by the raids and gun-running of Revolutionary movements, by race antagonism, by whatever system of local protection obtains in the Border States resembling the Vigilantes. There is no record of the violence used against Mexicans in the United States but press reports and knowledge of conditions in border states make it clear that it has been great.

PERSECUTION OF THE CHINESE

The Chinese have suffered probably more than any other aliens, chiefly in California. Chinese immigration to the United States began shortly after 1850 and continued until the exclusion act of 1882. For about two years they were unmolested, but thereafter became the victims of every type of legal and illegal persecution. The reasons for it were deepseated
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race antagonism and hostility by the working-class to a competitor who worked hard and needed little. The non-resistant philosophy of the Chinese made them safe victims, and they had no strong government behind them to demand protection. The slang phrase “a Chinaman's chance” tells the story. He had no chance.

The first anti-Chinese movement in California drove them from the better mines and settlements by intimidation, violence and deportation. They retreated to dumps and abandoned claims where less perseverance than a Chinaman's could not work them at a profit. Here they were terrorized, and mulcted of their earnings by the Miner's Tax Law, which became a source of considerable income to the State of California. The tax collectors gouged all they could from the Chinese by threats, outrages and even murder, until mining became so dangerous they gave it up. Then upon the adoption of the Fourteenth Amendment, this tax law was declared unconstitutional!54

In 1855 we have the interesting paradox of the native Protestant Know-Nothing Party mobbing Irish Catholics in the East and in California Irish Know-Nothings mobbing the “heathen Chinee” for stealing their country and their jobs!55

The Chinese fled from the mines to the towns. The people were led to believe them the root of all evil. From 1866 to 1877 they were attacked by violence, law, unjust taxation and police persecution. In 1869 the California State Democratic platform opposed the Fifteenth Amendment for fear it might enfranchise the Chinaman. Finally the fear of coolie competition became the inspiration for an organized propaganda of violence along the entire Pacific Coast especially during the labor agitation of the seventies. In 1869 a Chinese Protective Association was formed by the Chinese.

Since 1855 no other class of foreigner on the Pacific Coast has such a roll of outrage, robbery, and murder to show as the Chinese…. It would be impossible to estimate the number of victims unrecorded who were driven from their claims, robbed, mal-treated, or murdered.
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The Chinese were inevitably the prey of every lawless adventurer and criminal. The total undoubtedly mounts into the thousands…. There was an untold series of petty outrages in the West and over the entire country—of queue-cutting, snatching ornaments off women….56

In 1855 it was estimated that thirty-two Chinamen were killed. The San Francisco Bulletin had an excellent index which listed 262 outrages against Chinese before the fire of 1906. B. S. Brooks listed over two hundred cases in 1876 and adds: “Hundreds of Chinese have been slaughtered in cold blood in the last five years.”57 In 1862 a Senate Committee of the California Legislature acknowledged that “there had been a wholesale system of wrong and outrage practiced on the Chinese population.” In 1876–1877 the agitation against “coolie labor,” imported by business interests for cheap construction of trans-continental railroads, was seized upon by such political leaders as Dennis Kearney and his Sand-Lotters, to turn the discontented workingman into an instrument for their political power.58

Incidents taken from over the entire period are here given: March 9, 1857, at Alder Creek, a mob of iyo persons expelled all the Chinese. They made a circuit of ten miles, driving 19 away, tearing up their sluices, razing their dwellings, beating and mal-treating them…. October 24, 1871, began the big Los Angeles riots, over the arrest of a hoodlum for Chinese-baiting. Fifteen Chinamen were hung by the mob, and the Grand Jury later found indictments against thirty-two rioters.59

July 23, 1877 and for several days thereafter, the mob in San Francisco burned twenty-five washhouses, and indulged in an orgy of arson, robbery, and torture, which was finally suppressed only by the organization of a Vigilance Committee under the old chairman of the “Vigilantes” of 1850. It secured aid directly from the United States Government, with no appeal to the Governor, and illustrates one moment at which the popular
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police power worked for the protection of liberty. These riots spread from town to town, and similar ones broke out in the East. There were the deportations from Rocklin; the Chico murders in Montana. In the Truckee riots of 1878, a thousand or more Chinese were deported from one community. In San Francisco it was unsafe to attend the mission schools; laundries had to be barricaded against hoodlums with wire nets; the property of men employing Chinese was raided and burned. In Denver in 1880 trouble arose which led to the death of one Chinaman, and a property loss of $20,000.60

When the agitation against the Chinese had grown powerful, national action was taken to exclude all further immigration of Chinese. The Chinese Immigration Act was passed May 6, 1882; and the Chinese Exclusion Act September 13, 1888. The exclusion Act61 ended any possible Chinese “menace,” for no more Chinese could enter and those already here were not increasing. But this action did not stop the persecution. Let us note how the law treated the Chinese during this period.

LAWS RESTRICTING CHINESE LIBERTY

Law itself was frequently invoked in California against the Chinese. For example a California statute of 1850 excluded Negroes and Red Indians from giving testimony in courts of justice against whites. In 1854 in a murder case where the testimony of a Chinese witness was needed for conviction an appeal to the California Supreme Court brought this startling essay in ethnology;

The term Indians includes all Mongolians … as in the days of Columbus all the countries washed by Chinese waters were denominated “the Indies” … therefore, all Asiatics are Indians, and inhibited by the statute from testifying against white men….62

That this was no empty ruling was shown seventeen years later:—
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February 2, 1871.—A woman was arrested for stealing $38.50 from a Chinese. She was discharged on the ground that there were no white witnesses to the theft. The Chinaman speaks and writes English very well, yet he could not testify to the loss of the money.

After this date Chinese were permitted to testify.

A case of indirect attack on Chinese religious liberty by ordinance is significant as illustrating how the law discriminated. San Francisco in 1873 passed the “Cubic Air Ordinance” requiring 500 cubic feet of space for each person in any room of an apartment. Regular raids on crowded Chinese quarters caught 147 victims in 1873, whose fines averaged $10. No whites were ever arrested though thousands violated the ordinance nightly. Moreover, these same Chinese had been imported on ships with 96 cubic feet of air per capita, and were kept in city jails with less than 100 cubic feet, and a State Prison with only 25 feet per inmate. When 177 Chinese were mulcted of $2,060 in fines in 1874 they found it cheaper not to pay their fines and go to jail,—which they did in such large numbers as to embarrass the supervisors until they decided on both punishment and deterrent by cutting off the Chinaman's queues in jail, a serious loss to them.

This queue-cutting measure was first proposed as an ordinance in 1873, but defeated by the veto of Mayor Alford who quoted the Civil Rights Act of 1870 as applicable to the Chinese, and the Treaty provision of 1868:

Chinese subjects in the United States shall enjoy entire liberty of conscience, and shall be exempt from all disability or persecution on account of their religious faith or worship.

But three years later (June 14, 1876) the order was passed:

Each and every male prisoner incarcerated or imprisoned in the County Jail of this city and county under or pursuant to a judgment or conviction, had by any court having jurisdiction of criminal cases … shall immediately
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upon their arrival at said County Jail … have their hair of their head cut or clipped to a uniform length of one inch from the scalp thereof. It shall be, and is hereby made, the duty of the Sheriff to have enforced the provisions of this order.68

Three years later the ordinance was declared unconstitutional by Justice Field of the United States Circuit Court for California.

… the Supervisors had no power or authority to prescribe what amounted to an additional penalty…. The ordinance being directed against Chinese only, imposing on them a degrading and cruel punishment is also subject to the further objection that it is hostile and discriminating legislation against a class, forbidden by the Fourteenth Amendment which declares that no State “shall deny to any person within its jurisdiction the equal protection of the laws.” … The complainant avers that it is the custom of Chinamen to shave the hair from the front of the head and to wear the remainder of it braided into a queue; that the deprivation of the queue is regarded by them as a mark of disgrace, and is attended, according to their religious faith, with misfortune and suffering after death … and that the plaintiff has suffered great mental anguish, been disgraced in the eyes of his friends and relatives, and ostracized from association with his countrymen….

Probably the bastinado, or the knout, or the thumbscrew, or the rack would accomplish the same end; and no doubt the Chinaman would prefer either of these modes of torture to that which entails upon him disgrace among his countrymen and carries with it the constant dread of misfortune and suffering after death. It is not creditable to the humanity and civilization of our people, much less to their Christianity that an ordinance of this character is possible.64

This is apparently the only legal attack on the Chinese religious customs. But the popular attitude and consequences are shown here:
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Sacramento, November 4, 1873,—The Chinese have been occupied for several days past in their joss-house, it being holidays. On Sunday evening some white rascals visited the joss-house, and after various insulting performances one of them set fire to the immense paper image…. It was discovered in time…. Later in the evening some wretch cut off a Chinaman's queue….65

The problem of the Asiatic in California schools had already arisen, as this testimony shows in 1877:

A Chinaman wanted to go to school…. I wrote a letter to the school-board … that he was cleanly in person, well-behaved, and had such and such scholarship. They said personally they would not object, but that they did not think the public sentiment would allow it, and they did not dare admit him…. It was race prejudice…. I think there is no law against it…. I think the Chinese child has a right to go to the schools.66

The Exclusion Act of 1882 ended Chinese immigration, but not persecution.

In spite of the complete cessation of Chinese labor immigration, and in spite of the promises of our government to provide protection and “most favored nation treatment,” the unjust treatment of the Chinese did not cease. The outrages on them during the eighties were even more inexcusable than those of the preceding decade.67

Former President W. H. Taft, in The United States and Peace, cites the cases of 50 Chinamen who suffered death at the hands of mobs in the Western States, and 120 others who suffered wounds or robberies after 1885. The list is far from complete.

The most terrible of these events was the massacre at Rock Springs, Wyoming Territory, on September 2, 1885, in which at least twenty-eight Chinese laborers were killed, fifteen of
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whom had wives and children. Many others were driven into the hills and exiled, suffering both from wounds and exposure. $148,000 worth of property was wantonly burned. President Cleveland declared in a special message:

The facts … are not controverted or affected by any exculpatory or mitigating testimony…. There is no allegation that the victims by any lawless or disorderly act … contributed to bring about the collision; on the contrary it appears that the law-abiding disposition of these people, who were sojourners in our midst under the sanction of hospitality and express treaty obligations, was made the pretext for an attack upon them by a lawless mob. The oppression of Chinese subjects by their rivals in the competition for labor does not differ in violence and illegality from that applied to other classes of native or alien labor.68

The economic motive for this and other attacks is clear. This was a year of vigorous labor agitation by the Knights of Labor. The low-wage Chinese workers who had been imported to work on mines and railroads were easy victims. The overt cause at Rock Springs was a difficulty over the rights of Chinese workmen. A fight ensued down in a mine where four Chinamen were wounded, of whom one died. The following account is from the anti-Chinese local newspaper:

On Wednesday all the Chinese in Rock Springs to the number of about six hundred were driven out by the long suffering miners…. The fact that white men had been turned off the sections … while the Chinese were being shipped in by the car-load … strengthened the feeling against them….

After dinner the saloons were closed…. It was finally decided that John must go; and the small army of sixty or seventy armed men went down the tracks toward Chinatown…. They sent forward a committee to warn the Chinamen to leave in an hour. Very soon there was a running to and fro, and gathering of bundles. But the men grew impatient…. An advance was made
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with much shooting and shouting. The Chinamen snatched up whatever they could lay their hands upon and started east on the run … like a flock of frightened sheep scrambling and tumbling down the steep banks of Bitter creek…. Men, women, and children were out watching the huried exit of John Chinaman …

Soon black smoke was seen issuing from the peak of a house in “Hong Kong,” then from another … half-choked with fire and smoke numbers of Chinamen came rushing from the burning buildings, and with blankets and bed-quilts over their heads to protect themselves from stray rifle-shots, they followed their retreating brothers into the hills…. Joe Young, the sheriff, came down from Green River in the evening and guards were out all night to protect the property of citizens in case of disturbance. But everything was quiet in town…. Over in Chinatown, however, the rest of the houses were burned….

Thursday morning, in the smoking cellar of one Chinese house the blackened bodies of three Chinamen were seen. Three others were in the cellar of another, and four bodies were found near-by. From the position of some of the bodies, it would seem that they had begun to dig a hole in the cellar to hide themselves; but fire overtook them when about half way in the hole, burning their lower extremities to crisp—another body was found, charred by the flames and mutilated by hogs. The smell that arose from the smoking ruins was horribly suggestive of burning flesh….

Judge Ludvigsen summoned a coroner's jury … and they returned a verdict that eleven had been burned to death, and four shot by parties unknown to the jury…. Every one was sober, and we did not see a case of drunkenness. Some sixteen arrests were made, and the men put under bonds to appear at the next term of the Sweetwater County Court. The grand jury failed to indict, reporting instead:

We have diligently inquired into the occurrence at Rock Springs … and though we have examined a large number of witnesses, no one has been able to testify to a single criminal act committed by any known white
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person on that day … and therefore, while we deeply regret the circumstances, we are wholly unable, acting under the obligations of our oaths, to return indictments….

“The Rock Springs Independent” quoted in a pamphlet The Chinese Massacre.69

The effects of this wave of hostility by native workers spread widely:—

A few months since when the news came of the Wyoming massacre … there had been scarcely a ruffle on the quiet waters of Puget Sound concerning the now vexed Chinese question. A few days later there appeared an Irish agitator from California, who proceeded to harangue the laboring people and to organize them into lodges of the “Knights of Labor.” … Ere thirty days passed four Chinese laborers had been murdered cowardly in their beds, and a camp outfit worth some thousands of dollars burned at midnight, the inmates being driven half naked into the woods. Within ninety days these so-called Knights arose en masse at Tacoma, and drove two hundred Chinese residents from their homes … herded them on the open prairie in a drenching rain, and the next morning drove them into cars on an outgoing train, excepting two poor wretches that had to be carried, having died from exposure…. Seventeen persons, including one woman, were indicted for conspiracy against the Chinese … and Mr. Nixon who was president of the Young Men's Christian Association of Tacoma, and a member of the Presbyterian Church … resting under five well-earned indictments for unlawfully abusing and driving Chinese people from their homes.70

Dr. Gulick adds these details:

In an official report of February 15, 1886, riots were reported at Bloomfield, Redding, Boulder, Eureka, and other towns in California, involving murder, arson, and robbery, and it was added that thousands of Chinese had been driven from their homes…. None of the criminals
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were punished in spite of the article in the treaty expressly providing that—

In case Chinese laborers meet ill-treatment at the hands of other persons, the Government of the United States will exert all its power to devise measures for their protection and secure them the same rights, privileges, immunities and exceptions as may be enjoyed by citizens or subjects of the most favored nations, and to which they are entitled by treaty.

Since 1886 there has been no organized attack on the Chinese, although there has been repeated violence, mostly simple “hooliganism.” People have grown indifferent to the inconspicuous Chinaman, whose numbers are so few. But he like other aliens has suffered under the Immigration laws, from unjust arrest, unwarranted deportations and from the large powers granted executive officers to control the movements of immigrants without court review:71 Such abuses of power are exemplified by the following case when 250 Chinese residents of Boston were simultaneously arrested (October 11, 1902) on suspicion that they were in the United States illegally:

In many cases no demand was made for certificates of entry. The captives were dragged off to imprisonment, and in some instances the demand was not made until late at night or the next morning when the certificates were in the possession of the victims at the time of the seizure…. The case of one old man was particularly sad. In the upsetting of the police wagon, two of his ribs were broken, and he was otherwise injured…. He informed the officers that his certificate was in his trunk upstairs, but he was not permitted to get his papers even under guard. This innocent man who under treaty had a perfect right to reside in this country free from molestation was made to suffer untold tortures in body and mind…. Two hundred and thirty four Chinese were imprisoned … 121 were released without trial or requirement of bail … only five were deported, but the officials hoped to secure the conviction and deportation
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of fifty more…. Although earnest complaint was made by the Chinese minister to the government at Washington, not a single officer was punished, or even censured for his illegal and brutal conduct and no reparation was secured by the Chinese.72

Sidney L. Gulick writes: “Chinese, even those lawfully in the United States, are still liable to arrest and deportation under circumstances that deny them even the most rudimentary justice.” He cites the Case of Chin Loy You, brought before Judge Morton of Boston on a writ of habeas corpus to try the issue on an administrative order of deportation, February 16, 1915.73 Granting the writ, Judge Morton declared:

It is apparent that many of what we are accustomed to regard as the essential safeguards of individual liberty are ignored…. The prisoner was not allowed to see any of the witnesses against him while they were testifying, nor to cross examine them. All oral testimony was taken behind his back. The petitioner was denied the assistance of counsel…. The proceedings were plainly not of a judicial character. Why were the ordinary safeguards against injustice refused or ignored? It does not seem to me that the opportunity here given to present evidence and to argue the case rendered the proceedings fair or in accordance with due process of law…. The proceedings present, to my mind, a plain violation of the fundamentals of fair play by the immigration inspectors…. The next case of this kind may be one of an American citizen endeavoring to protect himself against exile by administrative order made in this way.74

THE JAPANESE QUESTION

The Japanese in comparison with the Chinese have suffered comparatively little loss of rights granted by treaty. They resist, and they have behind them an active government. The Japanese question centered in the right to own land, to attend the public schools and to become citizens.75

Freedom of education is closely related to the constitutional
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freedom, so mention of the Japanese and the schools in California since 1906 is in place. A California law of 1872 empowered school trustees to establish separate schools for Indian children and those of Mongolian and Chinese descent, and to segregate them in such schools, if provided. The Chinese rarely wanted occidental culture through public schools so the law was disregarded. But in May 1905 the Board of Education of San Francisco passed this resolution:

That it is determined in its effort to effect the establishment of separate schools for Chinese and Japanese pupils, not only for the purpose of relieving congestion … but also for the higher end that our children should not be placed in any position where their youthful impressions may be affected by association with pupils of Mongolian race.

On October 1, the Board directed all principals to send all Chinese, Japanese or Korean children to the Oriental public school after October 15.76 The insult implied in the Board's resolution produced international complication. The Japanese of San Francisco protested; the Japanese Government questioned the United States, and President Roosevelt sent Secretary Metcalf to report and conciliate.77

The existing treaty with Japan provided that Japanese “enjoy the same kind and degree of protection for persons and property that nationals enjoy and have free access to the courts to secure such treatment.”

It was held by the courts that separation in the schools was no violation of this clause. Investigation revealed only 93 Japanese students in 28,736 children. It was shown, however, that mature Japanese students were in classes with much younger students,—31 were above 16 years old, six being in primary grades and one of these was 19 years old. The issue was compromised. The Japanese over 14 years of age were permitted to attend the higher schools,78 thus preventing grown men sitting with children. The later attempts at restrictive measure against Japanese land-ownership et cetera are not within our field.
209

NOTES

1 S. Humphrey, The Indian Dispossessed; Francis E. Leupp, The Indian and His Problem; James McLoughlin, My Friend, the Indian; Helen Hunt Jackson, A Century of Dishonor. The publications of the Indian Rights Association (Philadelphia) contains many facts, especially on the swindling of the Indian out of his property.

2 Report of the United States Commission to President Grant, 1869.

3 Helen Hunt Jackson, A Century of Dishonor, p. 337.

4 Bishop Whipple, Introduction to A Century of Dishonor, p. vi.

5 The Present Situation in Indian Affairs, Indian Rights Association (1912), p. 10.

6 George W. Williams, History of the Negro Race in America, I, 144–170.

7 J. B. McMaster, Acquisition of the Rights of Man, p. 32.

8 Brawley, op. cit., p. 23. See also Hart, History by Contemporaries, III, 600 ff.; IV, 88, 89, 93, on Personal Liberty Acts. Thayer, Constitutional Cases, Vol. I, gives cases testing Negro rights. J. C. Hurd, The Law of Freedom and Bondage, 2 vols., gives a digest and discussion of laws on race and slave distinctions before 1858.

9 Von Holst, Constitutional History, II, 96.

10 Cutler, Lynch Law, p. 124. This gives data on negro crimes and illegal punishments in 1830–1850, and 1850–1860. Nat Turner led a plot to murder the white population of Tidewater, Virginia, in 1837, which was disclosed by another negro accomplice, and about 100 negroes slain. See Niles' Register XLI, and Message of Governor Floyd, December 6, 1831. Cf. the Vesey Riots, South Carolina, 1822. See also Winfield H. Collins, The Truth About Lynching in the South, pp. 21–23.

11 Gilbert T. Stephenson, Race Distinctions in American Law, pp. 7, 8; Thayer, Constitutional Cases, I, 473, and chap. iv, 475, 550, etc.

12 The Civil Rights Cases, 109 United States Reports 3.

13 Hannis Taylor, Origins of the American Constitution, chap. ix gives a good discussion of the meaning of these three amendments.

14 The Slaughter House Cases, 16 Wallace 36, 125; and William D. Guthrie, Lectures on the Fourteenth Amendment, p. 2.

15 Guthrie, op. cit.

16 Walter L. Fleming, Documentary History of Reconstruction, I, 243. See also pages 273, 341 for specimens of the laws; and G. S. Merriam, The Negro and the Nation, chap. xxx for a resumé of the laws; G. T. Stephenson, Race Distinctions, for reasons for the enactment of the codes.

17 John W. Burgess, Reconstruction and the Constitution.

18 Stephenson, op. cit., p. 107, declares the purposes of this amendment were: (1), to make the Bill of Rights binding on the States; (2), to give validity to the Civil Rights Bill of 1866; (3), to declare who were citizens of the United States. It was successful only in the last aim.

19 Committee of the House of Representatives, 42nd Congress, 2nd session (1871–1872), Report on the Affairs of the Late Insurrectionary States, 14 vols, of which several are devoted to the Ku Klux Klan. Other data is in Documentary History of Reconstruction, II, chap. xii; Hart, History by Contemporaries, IV, 495; Cutler, Lynch Law, pp. 138–139, 147, 151. Picturesque accounts are, Lester and Wilson, Ku Klux Klan, and J. M. Beard, K. K. K. Sketches.

20 Fleming, op. cit.

21 General Philip H. Sheridan, Report of the Military Commander to President Grant, 1875.

22 Senate Reports, 44th Congress, Executive Document, No. 2, I, 271.

23 Loc. cit., pp. 22, 23.

24 Congressional Record, December 18, 1879, X, pt. 1, pp. 155–170 gives evidence of this partisanship.

25 Henry Windom and Henry W. Blair, Senate Reports, No. 693, pts. 2 and 3, 46th Congress, 1st and 2nd sessions (1879–1880). The minority report directly contradicted these conclusions.

26 Cutler, Lynch Law, pp. 226, 276. George Holt, “Lynching and Mobs,” American Journal of Social Science, November, 1894, p. 67; A. E. Pillsbury, “A Federal Remedy for Lynching,” Harvard Law Review, XV. 707; Report of the Negro Society, 1911–1912; Bill Against Lynching, Senate Number 1117, 57th Congress, 1st session; House Judiciary Committee of the 65th Congress, 2nd session, Hearing on a Bill to Protect Citizens Against Lynching.

27 Op. cit., p. 265; see chap. vii, “Developments and Excuses for Lynch Law.”

28 Thirty Years of Lynching in the United States, p. 29, published by the National Association for the Advancement of Colored People. Cases of 43 whites and 138 Negroes have been omitted because the data could not be verified. The record of the Chicago Tribune covers also: 1885, —78 cases; 1886, —71; 1887, —80; 1888, —95. These two groups added to the list give a grand total of 3,729 cases from 1885 to 1919. This pamphlet includes the date, place, name and alleged crime in its 3,224 cases, and details of 100 typical cases. Cutler's Lynch Law, chap. vi, presents similar data; and Winfield H. Collins, The Truth About Lynching and the Negro in the South, p. 21 ff., gives facts on lynching before 1860, the small number of cases during the Civil War, and a small record (1866–1868) which does not agree with facts above.

29 The Crisis, December, 1911.

30 The Crisis, December, 1911.

31 The St. Louis Post-Dispatch, special correspondence.

32 The Crisis, September, 1918, p. 222, The Work of a Mob, report of the Association for the Advancement of Colored People.

33 Cutler, Lynch Law.

34 The Crisis, August, 1911.

35 Thirty Years of Lynching, condensing North Carolina newspapers.

36 Martha Gruening and W. E. B. DuBois, The Massacre of East St. Louis, p. 1. United States Congress, Report of the Rules Committee on the Riot at East St. Louis.

37 Ray Stannard Baker, Following the Colour Line, p. 15.

38 Laws of Georgia, 1905, p. 166. Stephenson, Race Distinctions, pp. 144, 145.

39 The Crisis, January, 1918, pp. 6, 7.

40 The News and Observer, Raleigh, N. C., August 19, 1906.

41 Baker, op. cit., p. 126.

42 Ibid., p. 152.

43 Baker, op. cit., pp. 79–80; A. J. Stone, Studies of the American Negro; Booker T. Washington, Up from Slavery, and The Story of the Negro.

44 Cutler, Lynch Law, p. 229.

45 Baker, op. cit., p. 160.

46 Baker, op. cit., p. 257.

47 New York Tribune, August 23, 1919.

48 Article I, section 8, clause 4; article II, section 11.

49 E. A. Ross, Social Control.

50 House Executive Documents, No. 2, p. 113. 32nd Congress, 1st session; and Resolution of Congress, March 3, 1853.

51 Foreign Relations, 1891, pp. 665, 713. See also Henry Cabot Lodge, “Lynch Law and Restricted Immigration,” North American Review, 1891, p. 602; E. W. Haffcutt, “International Liability for Mob Injuries,” Annals of the American Academy of Political Science, II, 69. A list of such cases is in John Bassett Moore, Digest of International Law, VI, 812, 840, 843, and 848. See Foreign Relations, XXII (1899) for President McKinley's statement in his annual message, December 5, 1899.

52 The details and an account of this problem are given in Charles R. Watson, “Need of Federal Legislation in Cases of Lynching,” Yale Law Journal, XXV, 573. Page 576 gives other cases of Italians.

53 Thirty Years of Lynching gives an idea of the record. See also Executive Reports, December 19, 1906, Anti-Spanish Riots by Secretary Metcalfe.

54 Mary R. Coolidge, Chinese Immigration, is the most valuable book of facts. See also Report to the Legislature of California, app. 3 (1862, 2nd session); Hittell, History of California, Vol. III; H. H. Bancroft, Works, Vol. XXXVII.

55 Prescott F. Hall, Immigration, pp. 207–208; Lucille Eaves, Labor Legislation in California; George F. Seward, Chinese Immigration.

56 Coolidge, op. cit.

57 Statement and Brief on Chinese Question before the Committee on Foreign Relations (1876), Senate Report No. 689, app.

58 James Bryce, American Commonwealth, II, 372; Hittell, History of California, IV, 595; H. H. Bancroft, Works. XXXVII, 662. Cf Constitution of California, 1878, Article 19.

59 Bancroft, Works, Vol. XXXV; Coolidge, op. cit., p. 265; Hittell, History, Vol. IV.

60 Condensed from various sources. See United States Foreign Relations (1881), China, p. 320.

61 Their rights had previously been defined and protected by the Burlingame Treaty, 16 Statutes at Large 740; and the Treaty of 1880 (22 Statutes at Large 827).

62 People versus Hall, 4 California Reports 399.

63 See How the United States Treaty with China is Observed in California, by Friends of International Right and Justice, for a complete account.

64 Ho Ah Kow versus Matthew Nunan, 5 Sawyer Reports 622.

65 B. S. Brooks, Brief before Congressional Committee, Appendix.

66 Senate Report 689, 44th Congress, 2nd session, p. 433.

67 Sidney L. Gulick, American Democracy and Asiatic Citizenship, p. 37. On the Exclusion Acts see Hall, Immigration, chap. xv, 327 ff. and Chinese Exclusion Cases, 130 United States Reports, 581.

68 United States Foreign Relations, 1886, China, pp. 166–168.

69 This pamphlet contains many facts on the economic issues. Other information may be obtained in John Bassett Moore, Digest of International Law, VI, 820, 826–835; and Congressional Documents, 1885, numbers 2368, 2460, p. 109.

70 Mrs. S. L. Baldwin, Must the Chinese Go? pp. 35–36.

71 Judgment on Chinese was finally vested in the Secretary of the Treasury, Act of August 18, 1894 (28 Statutes at Large, c. 301, p. 390).

72 John W. Foster, “The Chinese Boycott,” Atlantic Monthly, January, 1906, p. 122.

73 Op. cit., p. 48.

74 Ex Parte Chin Loy You, 223 Federal Reporter 833.

75 This chapter, of course, does not attempt to cover the late manifestations of anti-Japanese sentiment—the decision by the United States Supreme Court that Japanese cannot become citizens because they are not members of the “white race,” and the exclusion of Japanese altogether from the country by the Immigration law of 1924.

76 Gilbert T. Stephenson, Race Distinctions in American Law, p. 160.

77 Report of Secretary Metcalfe. (December 19, 1906).

78 For the international principles involved see A. S. Hershey, Japanese School Question and the Treaty Making Power; Congressional Record, December 12, 1906, speech by Rayner in the Senate; American Society of International Law, Proceedings, first annual meeting, April, 1907; S. L. Gulick, American Democracy and Asiatic Citizenship, and American Japanese Problem; Japanese Immigrant Cases, 189 United States 86. Political Science Review, I, 393, 510; Charles Butler, Treaty Making Power.

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