Ohio History Journal

DAVID A. GERBER

Lynching and Law and Order:

Origin and Passage of the

Ohio Anti-Lynching Law of 1896

Americans are increasingly discovering that the United States has had a relatively

lawless and violent history and that the problem of violent social disorder has con-

tinually plagued the nation. The truth of this assertion as well as its implication for

a deeper understanding of the country's social processes have tended to elude lib-

eral scholars bent on tracing the steady progress of American society toward higher

civilization and on constrasting the glowing promises of a democratic New World

with the corruption of monarchical Europe. But the social traumas of the 1960's

have seriously undermined the possibility of continuing to accept the old synthesis

of our past, with its promise of future and inevitable glory. By heightening the con-

tradiction between what we have professed and the way we have actually lived, and

by shaking our once firm confidence in the liberal values to which traditional histo-

rians have responded, the last decade, to which the late Richard Hofstader once re-

ferred as an "historical slum," has forced us to confront the peculiar Americanness

of the Nat Turner Revolt, the Battle of the Little Big Horn, and the Homestead

Strike. The 1960's have forced us at the same time to examine the potentials within

our social order for curbing brutal, anti-social urges.1

Given the long preoccupation of American society with the problem of black-

white relations in the United States, it is not surprising that racial violence has been

one of the most persistent of all types of American social violence. The bitter, irra-

tional prejudices, the deep-seated fears, the calculated manipulation of racial antag-

onisms for personal or corporate gain, the cowardliness and evasiveness with which

we have confronted the fundamental contradiction of our social values which racism

has posed: these have not readily lent themselves to resolution within the estab-

lished social and political channels for resolving conflict. At times, therefore, black-

white relations have seemed to take on characteristics of a social war rather than to

1. For some outstanding reappraisals of violence in American history, see Hugh David Graham and

Ted Robert Gurr, eds., Violence in America: Historical and Comparative Perspectives (New York, 1969);

Richard E. Rubenstein, Rebels in Eden: Mass Political Violence in the United States (Boston, 1970); Rich-

ard Hofstader and Michael Wallace, eds., American Violence: A Documentary Record (New York, 1970).

Mr. Gerber is an Assistant Professor in the Department of History, State University of New York at

Buffalo.

34                                                                      OHIO HISTORY

consist of the ordinary give and take of economic and social competition which have

generally characterized relations among the various white groups found in Ameri-

can society.²

The late nineteenth and early twentieth century was a time of increasing racial

tension. Promises of congressional Reconstruction were being repeatedly broken or

ignored, and the black American was sinking deeper and deeper into second class

citizenship. With the growing influence of social Darwinism on racialist thought,

racial attitudes hardened throughout society; at last intellectual legitimacy seemed

to have been found for the long felt desire for the subordination of blacks. In the

South, increasingly after 1890, legislation took the vote from the black man and be-

gan to segregate him in all areas of social life, while sharecropping and the crop lien

system continued to enmesh him in a cycle of debt and poverty. In the North, even

without specific legislation, the color line hardened. Gains that blacks had made in

the twenty-five years since the end of the Civil War through legislation and enlight-

ened public sentiment which allowed for freer access to public accommodations and

the public schools were now increasingly questioned and compromised.³

To a society that took pride in its commitment to law, order, and justice, one of

the most disturbing manifestations of the deterioration of race relations was the

growth of mob violence aimed at blacks. Between 1889 and 1918, according to sta-

tistics gathered by the National Association for the Advancement of Colored People

(N.A.A.C.P.), 2,522 blacks were the victims of lynch mobs nationwide, constituting

over 78 percent of the total number of victims of lynching. In addition, numerous

urban race riots, which were generally attacks by white mobs upon black neighbor-

hoods, took place throughout the nation.⁴ The most common incitant of such mob

violence against blacks was what contemporaries called "Negro crime," a euphe-

mism which more often than not meant not actually crimes upon persons or prop-

erty, but rather assaults upon the basic canons and the daily etiquette of the Ameri-

can racial caste system. Thus, not stepping out of the way when whites walked

down the sidewalk or the showing of the least sign of interest in a white woman on

the part of a black man might be examples of "Negro crime" in the South of that

day. By its very nature lynching denied its victims the right to their say in court.

We shall never know, therefore, how many persons suffered violent deaths, labeled

"fiends" or "brutes" by the press for crimes they were alleged to have committed,

2. The most important recent effort at providing theoretical perspectives for an understanding of racial

violence in the United States is Allan Day Grimshaw, ed., Racial Violence in the United States (Chicago,

1960).

3. On the deterioration of race relations in the South, see C. Vann Woodward, The Strange Career of

Jim Crow (New York, 1955), 11-108; in the North, see Ray Stannard Baker, Following the Color Line

(New York, 1908), 111; John Daniels, In Freedom's Birthplace: A Study of Boston Negroes (New York,

1967), 29-49; Gilbert Osofsky, Harlem: The Making of a Ghetto (New York, 1966), 4-52; Allen Spear,

Black Chicago (Chicago, 1967), 28-49. On the development of intellectual racism and racialist thought,

see Thomas Gossett, Race: The History of an Idea in America (New York, 1965), 144-175; George Fred-

erickson, The Black Image in the White Mind (New York, 1971), 256-282.

4. National Association for the Advancement of Colored People, Thirty Years of Lynching in the

United States, 1889-1919 (New York, 1919), 7-8, 29-41, 85. These riots bear greater resemblance in type

to the Russian "pogroms" than to the urban riots of 1919 in which blacks offered resistance to white in-

vaders or the ghetto insurrections of the late 1960's. The riots of the late 19th century and the early years

of the 20th found blacks generally not offering armed resistance to white invasions of their neighbor-

hoods; for a typology of racial violence, see Grimshaw, Racial Violence in the United States, 105-115.

Ohio Anti-Lynching Law, 1896                                                     37

the leaders and defenders of lynch mobs.⁸

The primary rationale for lynching was that certain heinous crimes, especially

rape and murders of unusual brutality called for setting aside traditional legal proc-

esses and in their place substituting a "higher law," the force of which was, in the

case of lynching, immediate and final punishment at the hands of the enraged com-

munity. "Higher law" is and has been an elusive concept. Commonly the term has

been used to describe an unwritten code of justice, informed by the deepest human

moral passions, which supposedly lies buried in the consciousness of all moral indi-

viduals and is ready to manifest itself when a sense of outrage is quickened. The

written statutes, with their technical precision, cannot, it has been said by exponents

of "higher law," embody this profound sense of justice. Also, at times, the statutes

themselves have not been free of error; they have on occasion committed societies to

unjust laws and untenable legal processes. Under these circumstances, "higher

law" was used by individuals and groups to circumvent statutes according to their

conception of justice.

The concept of "higher law" has tended, therefore, to make strange bedfellows

since acts of cruel vengeance as well as acts of idealism have been committed in its

name. In the nineteenth century, for example, we find it was used by the enemies

of the Negro-the lynch mob and its defenders-and by the allies of the Negro-the

abolitionists. The lynch mob, however, was not bearing witness against the sub-

stance of unjust laws, as were the abolitionists. It was, instead, simply impatient

with the slowness of legal processes and the inability of law enforcement agents,

who were often held in extreme contempt because of their commitments to such

processes, to exact the bloody and immediate revenge demanded. Holding agents

of the law in contempt, the mob rejected incarceration or trial of the accused; only

death would suffice if its conception of justice was to be satisfied. Neither the mob

nor its defenders sought to explain their actions by a reasoned statement of purpose,

as was most often the case with law-breaking abolitionists. Rather, mobs and their

defenders revealed the purely vengeful and irrational bases of their behavior when

they justified mob violence by employing excessively passionate rhetoric. This is

evident in the editorials of an Ohio newspaper which invoked "higher law" to justify

a lynching of an accused rapist in its community: "There are occasions when statute

law abdicates in favor of higher law. In dealing with human monsters each com-

munity is and always will be a law unto itself. . . . Law is a good thing; order is

greatly to be desired. But the holy rights of humanity and God's eternal justice are

above law and order." Under these circumstances, the "higher law" is of course no

8. The author's perspective on lynching is largely the product of a study of incidents related in various

secondary sources and of intensive research into ten lynchings of blacks which occurred in Ohio during

the late 19th and early 20th centuries. These took place at Oxford in 1877 and 1892; Sandusky, 1878;

Galion, 1882; Jamestown, 1887; Winchester, 1894; Rushsylvania, 1894; New Richmond, 1895; Urbana,

1897; and Springfield, 1904. I have also studied several serious, but unsuccessful attempts at lynching

which took place in Ohio at Washington Court House, 1894; Akron, 1900; Lorain. 1903; and the well-

known Cincinnati riot of 1884.

On the participation of the "best people" and the "good citizens" in mob violence, see, for examples,

West Union People's Defender, January 4, 11, 1894, which said of a local mob that it was "composed of

the best men of the northwestern part of the county"; Bellefontaine Examiner, May 17, 1894, which

spoke of local mob members as "ordinarily good citizens." It must not be assumed, however, that par-

ticipation of persons of high status was always the case. As of now, we know little about the social com-

position of lynch mobs.

38                                                                  OHIO HISTORY

law at all but is simply a rationale for unleashing the passions for vengeance in an

angered mob.⁹

Also underlying the invoking of the "higher law" where characteristically Ameri-

can attitudes toward popular self-government, the evils of political centralism, and

the inefficacy of judicial processes. To those who argued that the "higher law" was

simply a shameful excuse for lawlessness and sadistic brutality, defenders of lynch-

ing argued that the ultimate standard of justice in American democracy was the

people, not the courts and the laws, though the latter were of course the creation of

the citizenry itself through a political process which most Americans claimed to re-

spect. "The people rule this country," said an Ohio newspaper in defense of the

lynching of a black accused of raping a white woman, "and they have decreed that

in such cases every such monster shall die."¹⁰ At the base of this demand (for the

assertion of unlimited sovereignty by an enraged people) lay not only a feeling of

the special horror of interracial rape itself or of other serious, violent crimes, but

also a belief that traditional legal processes were much too lenient and inefficient,

that the courts could not be trusted to mete out the people's conception ofjustice.

An unmistakeable disgust with Ohio's courts, for example, was present during the

early 1890's, and the state's newspapers often isolated this as an important casual

factor in several of the attempts of enraged mobs to take the law into their own

hands. The respected Ohio State Journal of Columbus stated in 1894 in connection

with a proposal for anti-lynching legislation: "The leniency of the courts in this

state, the long-drawn-out machinery of the law, and the ease with which a convict

who has any friends to push his claim for parole or pardon can secure his early re-

lease from prison, have much to do with the growing displays of lynch law in Ohio."

Only when a community came to be assured that murderers and serious offenders

would be executed or receive long prison sentences after speedy trials, concluded

the Journal, would mob retribution cease.11

A lack of confidence in the courts and elected and appointed law enforcement

agents helped to create the phenomenon of the "law and order" mob: a mob which

rioted against its own legal agents in the name of the preservation of order and the

substance, rather than the form, of justice. Such mobs were involved in many of

the more typical lynchings of those accused of crimes of various kinds. Two of the

most destructive urban riots of the late nineteenth century were attributable to "law

and order" mobs. At Cincinnati in the early 1880's anger over the failure of local

law enforcement agencies, which many felt were the tool of venal politicians, to

prosecute those charged with serious crimes had been brewing for years. Many of

the city's most respected citizens had come to feel the need for direct action against

corrupt courts and police, and the possibility of the formation of vigilante groups

9. Urbana Citizen and Gazette, June 10. 1897. In reference to the same lynching, the Urbana

Champaign Democrat neatly wove the themes of the higher law and the male responsibility for the pro-

tection of female chastity, saying, "The people of Urbana . . . have no apology to make for the lynching

of the negro brute .... They did their duty and they are glad to have the world know that there is

enough of virtue and manhood in this good city ... to visit the same righteous punishment upon every

such vile monster who invades their homes and assaults their mothers, wives, and daughters." Ibid.,

June 10, 1897.

10. Urbana Champaign Democrat, June 10, 1897.

11. Ohio State Journal (Columbus), February 23, 1894. For a protest against the interference of "mere

technicalities," in the words of the Batavia Clermont Sun, with speedy retributive justice, see ibid., August

28, 1895.

Ohio Anti-Lynching Law, 1896                                               39

was widely discussed. These complaints crystallized in late March 1884 when a

young white man, a confessed murderer whose father was thought to have spent

huge sums of money in his defense, was given a relatively light sentence by a local

court. Charges of "fix" were in the air as indignation swept the city. Shortly after

a public protest meeting, lynch mobs attacked the jail where the prisoner was held.

Frustrated there by police resistance, mobs battled police in the streets for several

days and burned the city's courthouse, the symbol of their outrage, to the ground.12

Another "law and order" riot occurred at Akron in 1900 when a mob, frustrated in

its attempt to lynch Lewis Peck, a black man accused of raping a child, battled po-

lice for several hours and destroyed the city's courthouse.13

Even though members of the mob were willing to battle against police corruption

and the courts' failure to be concerned with retribution, they were not above cor-

rupting the customary legal investigative procedures, which followed lynchings, for

the sake of protecting their members from legal prosecution. Thus, the mob's rem-

edy served only to worsen the disease. Coroners' inquests, mandatory in cases of all

violent deaths, for example, seemed to almost always, when the victims met their

deaths at the hands of lynch mobs, result in the typical verdict: "The deceased came

to his death at the hands of persons unknown."¹⁴ Such a verdict was hardly ever

warranted. Most lynchings during the period took place in or near small towns

where people were generally known to each other. Even when accomplished at

night, lynchings were rarely intended to be secret; indeed, the desire to create a pub-

lic example of just punishment was often present. Even where conspiracies did ex-

ist, they hardly were so closed as to remain a mystery very long to local residents.

The tumult caused by an attempt to wrest a prisoner from a jail also often worked

against the possibility of secrecy.

Whether out of sympathy for the mob's work or in fear of jeopardizing political

careers, public officials often displayed reticence in pursuing mob members. In the

South, coroners' inquests, when held at all, usually were the only inquiries made

into lynchings. In the North, however, investigations beyond the inquest were

more common, whether in deference to enraged public sentiment against lynching

or to the Negro vote. In Ohio, for example, investigations by grand juries and spe-

cial state initiated inquiries into the activities of local officials frequently occurred,

but they usually accomplished nothing, or at most rendered few indictments. Local

public prosecutors rarely showed much zeal in seeking indictments against the per-

sons who elected them.15

Black responses to lynchings were a complex mixture of anger and resentment

and fear and shame. Many, of course, felt that the race, so recently admitted to full

citizen's status, was on trial in the nation, and the blacks accused of crimes hurt the

image of the Afro-American. A common immediate response, especially among

blacks of higher status was to lament the shame the accused had brought upon the

12. Laird Kleine, "Anatomy of a Riot, " Historical and Philosophical Society of Ohio, Bulletin, XX

(1962), 234-244.

13. Akron Democrat, August 23, 1900.

14. J. E. Cutler, "Proposed Remedies for Lynching," Yale Review, XIII (May 1904-February 1905),

209.

15. Ibid.; Sandusky Register, September 17, 1878; West Union People's Defender, January 18, 1894;

Bellefontaine Weekly Examiner, June 7, 1894; Columbus Dispatch, August 9, 10, 11, 1897; Cleveland Ga-

zette, August 14, 1897; Baker, Following the Color Line, 208-209.

40                                                            OHIO HISTORY

race. Soon after the lynching of a young man, thought to have raped a prominent

newspaper woman, at Urbana, Ohio, in 1897, Ralph W. Tyler, a Columbus black

newspaperman and political operative, wrote to a friend of his frustration over the

defense of the young man by many blacks, "I have no sympathy for the brute that

committed the rape .... There is always a class of our people who are ever ready to

rush to the defense of some damned brute, even at the expense of bringing disaster

to themselves, their families, and their race, to say nothing of the general public at

large."¹⁶ Similarly, an Akron black stated after the 1900 riot and attempted lynch-

ing in that city, "It is hard to think that one wretch has made it so that I cannot walk

down the street and look a white man in the face. I have lived here for 30 years,

have never been in any trouble, and am a taxpayer. A scoundrel who has resided

in Akron less than a year commits a crime that throws disgrace on every member of

his race. There is not a negro in the city, who is not severe in his denunciation of

the ravisher Peck. There are many of them who say that they would have been

glad to have had a hand in lynching him. Akron negroes, as a whole are law abid-

ing citizens."17

Ironically, this statement revealed the same willingness to break the law in order

to preserve the integrity of the law, as demanded by the white "law and order" mob.

Fortunately, other blacks-no matter how angered they were by lynching or the

crimes that were reputed to bring it about-were more circumspect, realizing that in

the deteriorating racial climate of that time blacks had nothing to gain from sanc-

tioning, let alone participating in, mob violence. While many felt the situation of

the early 1890's to be desperate, few spoke publicly of the possibility of retaliatory

violence. Though a national race conference held at Cincinnati in July 1892 to dis-

cuss the alarming rise in lynching did pass a resolution suggesting that black troops

and officers be trained at a proposed Afro-American military academy supported by

the Federal Government and stationed at "colored centers of population" for the

stated purpose of aggrandizing "the colored factor in national glory," even this

veiled proposal for the establishment of a black deterrent seems never again to have

been seriously discussed.18 Most race leaders of the time would probably have

agreed with black Cleveland attorney and political leader John P. Green who stated

in a newspaper article sometime later that violence as a tactic for dealing with the

race's deteriorating status "is utterly impractical and entirely out of the question,

not to be considered for a moment.... Even dynamite, that all potent leveler of

the weak and the strong ... is mewed up in the custody of the [white] majority."¹⁹

While eschewing retaliatory violence, blacks and their allies did not stop the

search for methods to put an end to lynching. Not only were the number of lynch-

ings dangerously high, but lynching was increasingly becoming a racial phenome-

non. While the number of lynchings in the United States from 1884 through 1886

had been 533, of which 199 (37%) had been of blacks, and from 1887 through 1889

had been 427, of which 233 (54%) had been of blacks, by 1890-1892 blacks had

come to constitute 370 of the 511 persons lynched, a full 72 percent of the total.

16. Ralph W. Tyler to George Myers, June 5, 1897. George Myers Papers, Ohio Historical Society.

17. Akron Democrat, August 23, 1900.

18. Cleveland Gazette, July 9, 1892.

19. Ibid., October 6, 1906.

Ohio Anti-Lynching Law, 1896                                                   41

Lynching reached a peak in 1892. In that year alone 226 persons (155 blacks,

68.5%) met death at the hands of lynch mobs, an average of over four persons per

week.²⁰

Fueling the fire of violent racial hatred, the daily press increasingly utilized a sen-

sationalistic treatment of lynching which irresponsibly exploited the existing shock

value of assaults upon racial and sexual codes in order to attract and then hold a

mass readership. Typical of many newspapers of the time were such headlines as:

"HE MUST DIE, IF NOT IN THE LEGAL STYLE THEN BY THE LYNCH

ROUTE" and "OUGHT TO BE LYNCHED." These accompanied articles that

spoke of the "lecherous negro," the "colored brute," and the "colored fiend."21

Some papers, perhaps unwilling to sell newspapers by the intentional use of such

techniques, nevertheless, showed a considerable lapse of professionalism in their de-

pendence on rumor and their uncritical acceptance of local opinion in reporting

lynchings. Those papers dependent on the national wire services, particularly the

Associated Press, simply printed stories as they received them. The Associated

Press, especially, was criticized by Negroes for its prejudicial, sensationalistic treat-

ment of the lynching of blacks and for its employment of all the code words and

catch phrases of the day in discussing the crimes which were reputed to result in

lynching. A black anti-lynching tract published in 1892 singled out the AP for its

role in making lynching respectable:

The Associated Press, that agent so powerful for the enlightenment of the public and the for-

mation of public opinion, gives its assent to murder by branding the victims [of lynching]

with vile epithets, and many sleep in bloody graves, stigmatized as "black fiends," "negro

monsters" and the like, who with fair trials might have gone free.22

Through these terrifying, bloody days of the early 1890's, Ohio blacks held prayer

meetings and passed resolutions, often demanding that federal and state authorities

involve themselves in the struggle against mob violence, particularly in the South.

But it was the lynching of a black teenager closer to home in Adams County, Ohio,

in January 1894 which prompted black leaders in the state to begin a serious search

for a legislative remedy for lynching in Ohio. The boy had been taken into custody

in the first week of December by local officials and charged with complicity in the

brutal murder of an aged farm couple living in a remote section of the county.

Amidst threats of lynching, local officials had taken him to jail in the next county.

When these threats subsided early in January, he was returned to face trial only to

be seized quickly by a mob, said by a local newspaper to be composed of the "best

men" of the community, and lynched. No indictments were made in the case, how-

ever, because public sentiment, including members of the grand jury, in the county

20. N.A.A.C.P., Thirty Years of Lynching, 29: Grimshaw, Racial Violence in the United States, 58.

21. The headlines and racial epithets quoted here are from the Cincinnati Enquirer, which was typical

of those papers which treated lynching in a sensationalist manner. Cincinnati Enquirer, November 9,

1890, August 17, 1891, January 15, February 21, 1892. On the paper's treatment of lynching, see two un-

published Howard University M.A. theses: Shirley M. Smith, "The Negro 1877-1898, as Portrayed in the

Cincinnati Enquirer " (1948), and Sebron Billingslea, "The Negro as Portrayed in the Cincinnati Exqui-

rer, 1901-1920" (1950). Billingslea has characterized the Enquirer's position on mob violence as "a full

adherence to lynch law in so far as Negroes were concerned." Ibid., 80-81.

22. A public letter: "To the Colored People of the United States," March 1892. Item 6156, Albion W.

Tourgee Papers, Chautauqua County Historical Society, Westfield, New York.

Ohio Anti-Lynching Law, 1896                                                    43

was in agreement with the mob, according to newspaper reports.²³

Immediately after the knowledge of the lynching reached Columbus, Ohio's three

black state legislators, William H. Clifford and Harry C. Smith of Cleveland and

Samuel B. Hill of Cincinnati, met with Governor William McKinley in the hope

that he might be persuaded to use his influence to pressure county officials to take

legal action against the mob. Strongly motivating the three was, according to

Smith, the knowledge that though lynching was fostered in the South, it-as well as

other forms of contemporary racial discrimination-were "spreading north and

westward entirely too fast." The three also called for petitions to the state legisla-

ture demanding an investigation of the Adams County affair. Some weeks later,

Hill introduced a resolution denouncing the lack of action by county officials and

appealing to "the law-abiding citizens of Adams County to use their utmost endeav-

ors to ascertain the perpetrators of this foul crime... ."24

Such efforts, while doubtless well intentioned, availed little. Though the gover-

nor denounced lynching strongly, as "murder-pure and simple," both he and the

legislature had few precedents upon which to base the intervention into local affairs

that the black legislators requested. It remained for Harry C. Smith and his long-

time friend and colleague in the struggle for black rights, Albion Tourgee, to pro-

pose a law which would deal comprehensively with lynching.

Though many years separated the thirty-one year old Smith, then serving the first

of three terms he would have in the Ohio House of Representatives, from the

middle-aged, Ohio-bred Tourgee, who had been a Radical Republican official in

North Carolina during Reconstruction, the two were united in what, to contempo-

raries, was a radical stand on the southern question. Both urged the necessity of a

continuing commitment of both the Federal Government and the Republican party

to the maintenance of the rights of the southern freedmen at a time when such a

commitment was quickly fading. In their pursuit of public support for racial equal-

ity and full citizenship for blacks, both Smith and Tourgee through their writings,

speeches, and organizational activities sought to mobilize public opinion against dis-

franchisement, segregation, and anti-black mob violence. When Tourgee founded

a National Citizens' Equal Rights League in 1890 to bring together all organizations

working for black rights around a common program, Smith was an enthusiastic sup-

porter. During the early 1890's Smith's Cleveland Gazette was always open to re-

prints of Tourgee's "Bystander" column, which appeared regularly in the Chicago

Inter-Ocean. Later in the decade articles from Tourgee's own Basis: A Journal of

Citizenship also appeared in the Gazette.²⁵

Tourgee was no stranger to the fight for a legislative response to lynching. For

several years, as director of his citizens' league, he had campaigned actively for the

passage of federal anti-lynching legislation which would establish the principle of

23. West Union People's Defender, December 21, 28, 1893; January 4, 11, 18, 25, February 15, 1894;

Cincinnati Enquirer, January 13, 1894; Cleveland Gazette, January 20, 27, February 3, 1894. On the first

black anti-lynching activities during the 1890's, see Cleveland Gazette, May 7, 14, 28, June 4, 11, July 9,

1892.

24. Ohio State Journal (Columbus), January 18, 26, 1894; Cleveland Gazette, February 10, 17, March

10, 1894.

25. On Harry C. Smith, see William J. Simmons, Men of Mark: Eminent, Progressive and Rising (New

York, 1968), 194-198; Cleveland Gazette, December 13, 20, 1941. On Albion W. Tourgee, see Otto H.

Olsen, Carpetbagger's Crusade: The Life of Albion W. Tourgee (Baltimore. 1965). On the cooperation

between Smith and Tourgee, see ibid., 310-313, 333.

44                                                             OHIO HISTORY

community responsibility and liability for mob violence. The Harrison adminis-

tration, however, had proved itself unwilling to make lynching a national issue.

Though Republicans had controlled both houses of Congress during 1889-1893,

Harrison said and did little for most of his presidency in response to the lynching

epidemic of the early 1890's. Indeed the President waited until his last annual mes-

sage in December 1892, only three months before a Democratic administration and

Congress were to take office, to recommend passage of legislation to protect citizens

from lynching. The sole legislative achievement on the subject during the Harrison

years was a federal law to protect foreign nationals in the United States from mob

violence, prompted by the mob execution of eleven Italian citizens at New Orleans

in 1890.26

Frustrated in attempts to win the interest of the administration and unlikely to

find a sympathetic ear in Democratic President-elect Cleveland, beholden to a sol-

idly Democratic South, Tourgee was prompted by the Adams County lynching and

presumably by the presence of Smith in the legislature to turn his efforts toward ob-

taining anti-lynching legislation in Ohio. Shortly after the lynching, Tourgee ad-

dressed a public letter to Governor William McKinley in which he outlined a plan

for a comprehensive anti-lynching law. Pointing to the spread of violent crime in

America, not only lynching but also homocide and armed robbery, he stated that

the nation was in a state of "near anarchy" comparable only to Russia (then at-

tempting to confront revolutionary radicalism under repressive, heavy-handed

Czarist rule). Tourgee also discussed the fears of labor and farmer radicalism

which haunted contemporary political conservatives. The year 1894 was after all

one of the worst years of a very severe depression, the consequences of which were

manifesting themselves everywhere, much to the horror of entrenched interests and

those of conservative temperament. Agrarian radicalism in the South and West

had already given rise to the Populist party, which now posed a threat to the bal-

ance of existing economic and political forces in the nation. In the North, a large

number of bitterly discontended, unemployed workers were organizing armies of

the jobless with the intention of marching on the national capital. Pointing to the

participation of Adams County's "best people" in the recent lynching, Tourgee, who

himself feared class as well as racial violence, warned, "If the present financial con-

dition continues . . . we shall see within a very brief time the same anarchistic spirit

displaying itself in the destruction of property. The hungry and destitute will argue

that if the rich and respectable are not punished for openly taking life they will be

equally exempt from punishment for destroying the property which a large portion

of our people already believe has been taken from them by legalized wrong."27

The law which Tourgee proposed was based on the belief that because lynchings

"never occur except in a community whose citizens favor and approve such out-

rage," the most efficient means to check them was to make the entire community re-

sponsible before the law for mob violence. This was to be accomplished, in his

words, by "touching the pocket-nerve": establishing community financial responsi-

bility for lynching in the same manner in which railroads were required to make fi-

nancial restitution to the legal representatives of victims of railroad accidents in

which the operators were found negligent.

26. Olsen, Carpetbagger's Crusade, 325; Cleveland Gazette, June 4, 1892; Rayford W. Logan, The Be-

trayal of the Negro (New York, 1954), 85-86.

27. Tourgee's letter to the governor is reprinted in the Cleveland Gazette, March 3, 1894.

Ohio Anti-Lynching Law, 1896                                          45

Specifically, Tourgee suggested that the legal representatives of victims of lynch-

ing in Ohio be allowed to sue the county in which violence occurred for $10,000. If

the victim of the mob was not killed but seriously injured, he might sue for not less

than $1,000, and if not seriously hurt, for no less than $200. The money was to be

raised by a general tax levy in the offending county. To counteract the possibility

of local intimidation of those seeking redress under the law in the county where the

crime was committed, suits for damages might be instituted in any adjoining county.

To check the possibility of relatives or victims compromising or agreeing to take less

than the full amount of the claim, the proposal carried with it the penalty of mis-

demeanor for such a settlement. Finally, Tourgee's proposal did not exempt mem-

bers of lynch mobs from prosecution on criminal charges.²⁸

The Tourgee plan was founded upon certain problematic assumptions about hu-

man motivation, violence, and interclass relations. He assumed that the principle

of community liability in touching the "pocket nerve" of the community's higher

status persons would move them to become the most effective opponents of lynch-

ing. Also, as heavier taxpayers, they would be discouraged from participating in

lynch mobs and would be forced to use their power and prestige to restrain mobs

and bolster the efforts of local law enforcement agents. To the extent that persons

of high status were members of mobs, it was possible that the law might cause them

circumspection, though the size of their loss in a heavily populated area would be

minimal-especially given the fixed penalty advocated. Another weakness of the

law was that it considered the composition of lynch mobs to be socially constant,

when in fact each mob might well be different, depending on the size of the commu-

nity, the nature of the crime, and the social class of its victim, and doubtless many

other variables. The proposal also may well have overestimated the influence "best

people" had on those beneath them on the social scale and the extent to which the

former would deign to involve themselves in checking the violent behavior of the

latter. But perhaps the most fundamental problem with the law was its dependence

on a calculation of rational self-interest to dissuade a violent mob profoundly en-

raged by the occurrence-or rumored occurrence-of a brutal crime, especially when

that rage was heightened by racial prejudice and definite notions of the "place" of

blacks in society. Ultimately, while such a law might be helpful to some extent, the

effort to eradicate lynching required as its first prerequisite the most determined and

unyielding law enforcement by local officials, perhaps supplemented when neces-

sary by the presence of the state militia.

Yet, the Tourgee proposal was innovative and certainly more comprehensive than

any other piece of legislation against lynching enacted up to that time. In fact by

1894 only two states in the entire nation, Georgia and North Carolina, had any anti-

lynching legislation at all. Both states had passed laws in 1893 in response to the

outbreak of lynching in the South. The Georgia law simply penalized sheriffs

found negligent in the protection of prisoners threatened by mob violence and al-

lowed law enforcement agents to deputize local citizens for the purpose of obtaining

aid in the protection of jails and persons in custody. No penalty defined by the law

was greater than a misdeameanor, no doubt offering little incentive for the sheriff to

become involved in a bloody struggle against a mob. The North Carolina law was

even weaker. It simply made counties in which lynchings occurred liable for the

28. Ibid.

46                                                                     OHIO HISTORY

costs of the investigation and prosecution of persons involved in a mob.²⁹

The need for anti-lynching legislation in Ohio was again highlighted during the

legislative session in the spring of 1894 by the lynching of a black man accused of

raping an eighty-year old woman at Rushsylvania in rural Logan County. The

woman identified her assailant just hours after the supposed crime, but shortly after

the lynching she was not as sure as she had been. As usual, though a grand jury in-

vestigation of the affair was held, the refusal to indict known mob members closed

the affair forever.³⁰

But pressing as the need for legislative action appeared, Ohio's black legislators

were not united on a single approach to an anti-lynching bill. Though Smith had

declared his intention to offer a bill embodying Tourgee's proposal, his Cleveland

political rival and personal enemy, William Clifford, took the opportunity presented

by a delay in Smith's plan to introduce his own bill on April 18. The Clifford bill,

no doubt at least in part motivated by a desire to upstage Smith, was hastily drawn

and unworkable. It defined as a participant in lynching every person present at the

scene of mob violence, providing sentences of five to twenty years for each. Not

only therefore might the Clifford proposal have sent whole towns to prison (not to

mention uninvolved bystanders), but also it nullified the possibility of there being

any witnesses by making everyone a defendant!³1

Smith's more comprehensive and viable plan was in accordance with a revised

Tourgee proposal which reduced the amount paid to victims of lynching or their

representatives, and was introduced a short time later. It was doubtful, however,

that the General Assembly would act on either bill that session since it was the cus-

tom of the legislature at that time, when hearing matters relating to the interest of

Ohio's blacks, to wait until the blacks had resolved the differences among them-

selves before proceeding. Thus, the only anti-lynching measure passed that session

was Representative Samuel Hill's resolution condemning the lynching at Adams

County. An opportunity had been lost, and, since the state legislature was to begin

meeting biennially rather than yearly after the 1894 session, action was postponed

until 1896.32

Events between the end of the 1894 session and the next legislature caused many

to lament the delay. Particularly tragic was the violence at Washington Court

House. Attempts in that town to lynch a Negro recently convicted for raping a

white woman, led to clashes between mobs and state militia units which had been

rushed to the scene by Governor McKinley. When the mob attempted to seize the

prisoner, the militia fired. As a result, five youths in the crowd were killed and

29. Code of the State of Georgia, Adopted August ... 1910 (Atlanta, 1911), II, 74-75; Thomas Womack,

etal., Revisal of 1905 of North Carolina (Raleigh, 1905), 363. During Reconstruction, in a minority of

southern states, there had been anti-mob violence legislation, but in only South Carolina and Alabama

had the principle of community liability been established. An Alabama law passed in 1868 to counter

violence against Radical Republicans came closest to the Tourgee proposal, providing for the widow or

next of kin of murdered victims of mob violence to recover $5,000 from the county where the violence

occurred. The South Carolina law allowed for payment in the case of survivors of persons killed for

their political opinions. It is possible that Tourgee, who served as a Republican judge during Recon-

struction in North Carolina, had been influenced by these earlier, ephemeral measures, which are men-

tioned by Lerone Bennett, Jr., Black Power U.S.A.: The Human Side of Reconstruction, 1867-1877 (Balti-

more, 1969), 376.

30. Bellefontaine Weekly Examiner, April 19, May 17, June 7, 1894.

31. Cleveland Gazette, May 12, 1894.

32. Ohio State Journal (Columbus), May 9, 1984; Cleveland Gazette, May 12, 19, 1894; Ohio, House

Journal, 1894, p. 1007, 1098.

Ohio Anti-Lynching Law, 1896                                                47

some twenty persons wounded. On the heels of the nationally publicized Washing-

ton Court House riot came threats of lynching at Newark and Hicksville, and sev-

eral weeks later at Springfield. More violence occurred in 1895. At New Rich-

mond in August, a black man accused of the murder of an aged banker, whom he

claimed had cheated him of a large sum of money, was lynched. In October two

men were killed in clashes with militiamen at Tiffin, to which the militia had been

called when a mob attempted to seize a white prisoner who was being held for mur-

der of a popular local marshal.³³

Such events no doubt helped to emphasize the immediate need for anti-lynching

legislation when the newly elected, overwhelmingly Republican state legislature

convened in January 1896. Harry C. Smith, who would also obtain an important

revision of the state civil rights law during the session, had been reelected promising

to pursue an anti-lynching bill. Governor McKinley lent the prestige of a possible

presidential candidate to the cause in his last annual message, making a strong plea

for anti-lynching legislation and pointing to the tragic consequences of mob vio-

lence at Washington Court House and Tiffin.

Smith introduced his anti-lynching bill on January 20 and was optimistic regard-

ing passage. Allied with him were several of the most prestigious newspapers in the

state, including the Ohio State Journal (Columbus) and the Cleveland Plain Dealer.

Furthermore, unlike the 1894 session, he enjoyed the full cooperation of his two

Afro-American colleagues in the House of Representatives, William Stewart of

Youngstown and William Parham of Cincinnati. Adding to Smith's optimism was

Tourgee's promise that he would appear on February 5 before the house judiciary

committee.³⁴

The bill, however, was soon in trouble. Though the judiciary committee recom-

mended passage on February 20, a group of house members of both parties led by

Representative Aquila Wiley, a Wayne County Democrat, opposed not only the

principle of community liability but indeed the very idea that anti-lynching legisla-

tion was needed in a northern state. In forceful speeches Wiley called the bill a

"revolution of all laws and rules of criminal jurisprudence." Assuming the guilt of

all victims of mob violence, Wiley contended that the bill placed a premium on

crime by granting to the target of mob retribution a large sum of money which, he

said, was in effect "a pension for the worst criminals in the state." Wiley was also

something less than sensitive to constitutional guarantees of a fair trial. Countering

Smith's claim that several southern states were then discussing legislation modeled

after his bill, Wiley stated that such a law was only needed in the South where

blacks were lynched for attempting to exercise constitutional rights such as voting.

In the North, he stated, "Nobody is lynched here except those who have been guilty

of so heinous crime that the indignation of citizens arises in an uncontrollable

frenzy."³⁵

The bill reached a vote on February 26 and was defeated. Though it received 50

votes, to the 34 cast against it, it lacked a necessary constitutional majority of 57.

33. Cyclone and Fayette Republican (Washington Court House), October 11, 18, 25, 1894; Batavia Cler-

mont Sun, August 28, 1895; Tiffin Seneca Advertiser, October 25, 29, November 1, 5, 1895; Cleveland Ga-

zette, October 20, 27, December 22, 1894, August 31, November 23, 1895.

34. Ohio State Journal (Columbus), January 21, February 6, 1896; Cleveland Gazette, January 25,

1896; Harry C. Smith to Albion W. Tourgee, January 27, 1896, item 8948, Tourgee Papers.

35. Dayton Daily Journal, February 28, 1896; Ohio State Journal (Columbus), February 27, 1896;

Smith to Tourgee, February 20, 1896, item 9084, Tourgee Papers.

48                                                                   OHIO HISTORY

Voting against the bill were 12 of the 23 Democrats present and 22 of 89 Republi-

cans, while 28 members-most of them Republicans-chose to absent themselves

from the floor. In general, representatives from southern and central counties, where

almost all of the recent manifestations of lynch law had occurred, failed to support

the bill. After several weeks of intensive campaigning among house Republicans

the bill did pass on March 24 by a vote of 61 to 22, but by only 4 votes more than a

constitutional majority. While a relatively large number of southern Ohio Republi-

cans still continued to vote against the bill or not at all, a change of 4 votes in the

Hamilton and Montgomery County Republican delegations provided the margin of

victory. With a minor amendment, which the house later approved, the bill then

passed the senate on April 8 by an almost unanimous vote of 22 to 2. In its final

form, the Smith bill embodied all the major provisions of the Tourgee revised pro-

posal with the compensation for the relatives of those killed by mob violence cut in

half.³⁶

The law soon became a model for anti-lynching legislation in other states. South

Carolina in 1896 and Kentucky in 1897 passed laws directly patterned after the

Ohio law, while Illinois, Minnesota, Nebraska, New Jersey, Pennsylvania, West Vir-

ginia, and Wisconsin all approved legislation after 1900 embodying the major provi-

sions of the law. When the N.A.A.C.P. carried on a campaign for anti-lynching leg-

islation in Pennsylvania during 1912-1913, the Ohio law served as a model for its

efforts.³⁷

Praised as it was elsewhere, the Smith Law had to weather several serious chal-

lenges in the next few years, both in and out of the legislature. Unfortunately, in

spite of the law, it was not long before another lynching occurred in the state. At Ur-

bana in early June 1897 a young black was brutally mobbed and lynched after

being charged with the rape of a wealthy widow. Evidence reported in Harry

Smith's Cleveland Gazette in the weeks following the lynching suggested not only

that there had been glaring cowardice and remarkably poor judgment displayed by

local officials in guarding their black prisoner and in their unsuccessful attempts to

quell the mob gathered outside the Urbana jail, but also that very probably there

had been neither rape nor assault of any type. As usual, however, neither local in-

quiries nor grand jury hearings nor state-initiated investigations yielded punish-

ments for the mob and its supporters.38

The Urbana affair helped to provide an excellent court test of the new law.

Shortly after the lynching, the relatives of the victim instituted a suit for maximum

damages against Champaign County. At the same time, a suit under the law was

pending in the Common Pleas Court of Cuyahoga County, filed by three whites

36. Cleveland Gazette, February 29, March 7, 28, April 11, 1896; Ohio, House Journal, 1896, pp.

313-314, 320, 699-700; Ohio, Senate Journal, 1896, pp. 602-603: Smith to Tourgee, April 8, 1896, item

9084, Tourgee Papers; Laws of Ohio, 1896, pp. 136-138.

37. James H. Chadbourn, Lynching and the Law (Chapel Hill, 1933), 149-213; J. E. Cutler, "Proposed

Remedies for Lynching," 194-212; Edward Pell, "The Prevention of Lynching Epidemics," Review of Re-

views, XVII (March 1898), 321-325; Charles Flint Kellogg, NAACP, A History of the National Associ-

ation for the Advancement of Colored People (Baltimore, 1967), Vol I, 1909-1920, p. ²¹⁴. Yet the Smith

Law has been neglected in the historical literature on lynching. White's Rope and Faggott, Shay's Judge

Lynch, His First Hundred Years, and Chadborn's Lynching and the Law either fail to make mention of

the law or simply list it along with other state anti-lynching laws without discussing its influential and in-

novational character.

38. Urbana Citizen and Gazette, June 7, 1897; Urbana Champaign Democrat, June 3, 10, 1897; Cleve-

land Gazette, July 10, 17, 24, August 7, 14, 21, 1897.

Ohio Anti-Lynching Law, 1896                                            49

who had been mobbed during labor violence at Cleveland in 1896. In late July,

only three weeks after the Urbana lynching, a Cuyahoga County judge rendered the

opinion that the Smith Law was unconstitutional because it levied a tax for private

purposes and established fixed penalties. In the Urbana case, a Champaign County

Common Pleas Court judge ruled the law unconstitutional only to be overruled by

the county Circuit Court in October 1898. Both the Cleveland and Urbana cases

reached the State Supreme Court in 1900 on appeal, and the court sustained the

law's constitutionality. While the issue was being fought in the courts, efforts to re-

peal the law in the General Assembly in 1898 proved unsuccessful. During the

1898 session, the law and the general cause of anti-lynching were actually strength-

ened when Representative William Steward of Youngstown, reelected for a second

term, obtained the removal of a section of the Smith Law which it was feared would

be offensive to the courts. Furthermore, a white legislator, Representative Chase

Stewart, successfully sponsored a bill providing that persons breaking into jails and

attacking law officers in order to seize prisoners for the purpose of lynching were to

be sentenced to terms of between one year and ten years in the penitentiary.³⁹

By the first decade of the twentieth century Ohio, with the approval of her highest

court, had created a legal bulwark necessary to protect a civilized community

against lynching. There is no way to determine how many incipient mobs were dis-

suaded from forming by a knowledge of the consequences for their communities

which the law now held, but the effects of this legal bulwark appeared to be mixed

during the first decade of the new century. While the number of lynchings declined

from five during the 1890's to two during the first decade of the twentieth century,

the scale of violence in those attempts at lynching and those anti-black riots which

did occur actually grew.

At Akron in August 1900 a mob led by, among others, a prominent member of

the city council, became so enraged over the rumor that a black man had raped a

white six year old that it fought for ten hours with police for custody of the accused,

who had been spirited away to Cleveland for safekeeping by an alert sheriff. Frus-

trated in its attempts at lynching and spurred on by a newspaper which printed sen-

sational stories about the incident in red ink, the mob ultimately dynamited the

city's government building-courthouse complex and fired several nearby stores.40 It

was at Springfield, however, that the most serious incidents of the early years of the

century occurred. There in 1904, following the murder of a policeman by a Ken-

tucky Negro recently settled in the city, a mob broke into the city jail, seized the

prisoner, and lynched him in a downtown square. The lynching was followed by a

riot in which a white law and order mob sought to uproot from the city a slum like

area of interracial vice and crime. Many citizens of Springfield blamed the saloons,

brothels, and gambling dens found there for the contempt for the law and its offi-

cers that was said to be so pronounced in the city at the time among both blacks and

whites. The mob succeeded only in burning down the tenements in which many im-

proverished blacks lived. The official response to its violent deeds was predictably

ineffective and did little to strengthen the forces of law and justice in the city. Only

a minority of those charged before a grand jury were indicted, and little in the way

of punishment was meted out to those forced to stand trial. Indeed, the only de-

39. Cleveland Leader, March 12, 1897; Cleveland Gazette, February 5, April 23, October 22, 1898,

March 25, May 6, 13, 1899, April 21, 1900.

40. Akron Democrat, August 24, 25, 1900.

50                                                              OHIO HISTORY

fendant actually charged with complicity in homocide for his participation in the

lynch mob was acquitted.⁴¹

Springfield remained ripe for another round of violence, and it came almost two

years to the day after the first riot. The immediate reasons were attacks upon sev-

eral whites by blacks, whom the whites were said to have taunted with racial slurs,

and by the shooting of a white railroad worker by a black man. All the blacks in-

volved were quickly apprehended and sent to the Dayton workhouse in order that

the scenes of 1904 might not be repeated. But an enraged mob again attacked the

slums where vice and crime festered, burning down a number of saloons and tene-

ments, dispossessing more of the hapless, innocent black poor who were forced to

live amidst squalor and vice. Though few mob members were jailed, the official re-

sponse was not without some merit: an effort was made to regulate saloons and

close vice operations, and a civic league of prominent white citizens was formed to

help combat vice and crime.⁴² The rest of the decade in Ohio was quiet as far as ra-

cial violence was concerned, though the lynching of a white man at Newark in 1910

at the hands of a white mob demonstrated that the spirit of bloodlust which sus-

tained lynching was still capable of inciting riot.⁴³

While Ohio had actually witnessed relatively few lynchings during the 1890-1910

period, the pattern of violence within the state was broadly similar to that in the na-

tion at large. Following the peak of lynching in the early 1890's, the incidence of

lynching began to decline after the turn of the century. Never again, according to

available data, did the extent of lynching ever reach its earlier very high levels. Ex-

planations of the peaks and ebbs in the appearance of lynch mobs await a general

historical treatment of racial violence in the United States. Perhaps as blacks be-

came increasingly mired in second class citizenship in the first decades of the

twentieth century, trapped by poverty, disfranchisement, and segregation in un-

questionable and unambiguous socioeconomic and political inferiority, in the South

especially and to some extent in Ohio and the North, the need to reinforce their

status through violent intimidation declined. Perhaps law enforcement agents be-

came more conscious of their duty to resist lawless mobs bent on lynching. What-

ever the explanation, there is certainly a great need for historians to attempt to

come to terms with this bloody and too easily neglected chapter of our violent na-

tional past.

41. Baker, Following the Color Line, 201-208; Springfield Press-Republic, March 8, 9, 10, 11, 1904;

Cleveland Gazette, March 12, April 2, 9, May 7, 1904.

42. Baker, Following the Color Line, 210; Springfield Daily News, February 26, 28, March 1, 2. 3. 1906;

Cleveland Gazette, March 3, 10, 17, 31, April 7, 14. 1906.

43. N.A.A.C.P., Thirty Years of Lynching, 85.