James P. Brochin
The 5
th
Amendment provides, in pertinent part, as follows: "No person shall be deprived of life, liberty, or property…without due process of law." When it was ratified in the 18
th
Century, slaves were property, not citizens. Mexicans, Asians, and Native Americans were also not citizens. The 5
th
Amendment was interpreted to apply only to the federal government, not state government. Thus, prior to the ratification of the 14
th
Amendment during Reconstruction, due process was reserved only under federal law, for whites of European (non-Spanish) descent, and, arguably, for freed blacks. The broader right to equal protection under the law did not exist until the adoption of the 14
th
Amendment.
The 14
th
Amendment, ratified and adopted by the Constitution on July 9, 1868, provides in pertinent part, as follows: "Section 1. 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."
How was it possible that America went from the legally accepted view that slaves were property, not people, to emancipated citizens guaranteed protection afforded all citizens, including due process and equal protection? The history of reunification after the Civil War provides the answer. State legislatures in former Confederate states, except Tennessee, refused to ratify the amendment. The Reconstruction Acts imposed military government until new civil governments were established and the 14
th
Amendment was ratified. Congress also passed a law requiring that a former Confederate state must ratify the 14
th
Amendment before "said State shall be declared entitled to representation in Congress." So, former Confederate states were given a choice, refuse to ratify or lose representation in Congress indefinitely. Their assent to the amendment showed little of the deep resistance, near revolt, which would emerge as Reconstruction ended and Union soldiers were withdrawn (1877), and the dark days of Jim Crow and lynching would take hold.
During the pre-Civil War decades, the Deep South had become so dependant on slavery for its economic well-being and survival that freedmen in their midst became natural targets of resentment, hatred, and fear. No longer would masters have an incentive to keep slaves healthy and salable. Plantation society, the millionaire grower class, was gone, except in the vestigial form as part of sharecropping. Blacks were now competition in the fight for economic survival in the war ravaged and economically distraught South. Though emancipation through Lincoln's Declaration and later postwar 13
th
Amendment should have come as no great surprise to a nation and South well versed in the generations-long debates over slavery, the Reconstruction Amendments (13
th
- universal emancipation, 14
th
– citizenship, due process, and equal protection, and 15
th
– voting rights for black men, forced upon Southern states as quid pro quos for re-entry into the Union) were thoroughly rejected by the vast majority of Southern state governments and populations.
In this context, with freedmen seen as a direct threat, that some of the differences, and similarities, between Southern lynching and Western lynching emerge. The central visual image of Western lynchings is a man hanging from an oak tree (the "Hanging Tree"), and as Gonzalez-Day recounts one case (Lynching in the West, p. 2):
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"On October 17 [1861], Mrs. Leck…was working in the small shop that she and her husband owned downtown Los Angeles when she was brutally stabbed and robbed…People began to assemble in front of the small storefront after she was discovered. Word spread through the crowd that a suspect had been identified. Her was rounded up and brought before the angry crowd. A rope was placed around his neck. One eyewitness detailed how the angry mob dragged the accused down Alameda Street, observing that by the time they had turned onto Aliso Street the loathsome creature had been stabbed so many times that her was nearly dead already. In spite of his rapidly declining health, he was strung up by the vigilantes just blocks from the sheriff's office. The newspaper summarized the popular sentiment surrounding the case when it wrote, 'A butchery such as he committed was enough to stir our citizens to call aloud for instant vengeance. This was no ordinary case. A helpless and feeble woman, a mother, with two little children playing around her, is set upon by this devil in human form, and mangles and mutilated until life is extinct, for the purpose of gain. No death is too horrible for such a monster, and the yawning gates of hell opened to receive him none too soon.'… This particular monster was named Francisco Coat and he was 15 years old… he was Mexican…denied due process, stabbed, dragged, and hanged with a rope by a group of European and Anglo-Americans that had chosen to take the law into their own hands."
In the South, lynchings were often far more brutal. The very first paragraph of this Unit Plan, on p. 1, leaves out the more awful details of Sam Hose's. I continue as follows:
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"Hose had, in self-defense, thrown his axe at his boss Alfred Cranford, who threatened Hose with a gun. Cranford died. "Within two days, newspapers reported an altogether different version. Cranford had been eating dinner when Hose-"a monster in human form"-sneaked up on [Cranford], buried an ax in his skull, and after pillaging the house, dragged Mrs. Cranford into the room where her husband lay dying and raped her. If versions of Cranford's death varied, the story of Sam Hose's fate did not. After stripping Hose of his clothes and chaining him to a tree, the self-appointed executioners stacked heroine-soaked wood high around him. Before saturating Hose with oil and applying the torch, they cut off his ears, fingers, and genitals, and skinned his face. Wile some in the crowd plunged knives into the victim's flesh, others watched 'with unfeigning satisfaction' (as one reported noted) the contortions of Sam Hose's body as the flames rose, distorting his features, causing his eyes to bulge out of their sockets, and rupturing his veins. The only sounds that came from the victim's lips, even as his blood sizzled in the fire, were, 'Oh, my God! Oh, Jesus.' Before Hose's body had even cooled, his heart and liver were removed and cut into several pieces and his bones were crushed into small particles. The crowd fought overt these souvenirs. Shortly after the lynching, one of the participants reportedly left for the state capitol, hoping to deliver a slice of Sam Hose's heart to the Governor of Georgia, who could call Sam Hose's deeds 'the most diabolical in the annals of crime.'"
Lynching in the West provides a clear and succinct larger meaning to the story of lynching in California, which I believe can be applied nationwide: "In considering the history of both legal and extralegal forms of execution in California, this chapter rests on a singular assertion: in a representative democracy, justice must be more than majority opinion alone. The judiciary was established as the third branch of government to establish equality under the law, and while its boundaries have expanded beyond those individuals it initially sought to protect, its reliance on legal precedence has helped to ensure that no ruling can completely disregard past rulings. As trying as it may be to the patience of the community, the right to due process remains the defining principle of the U.S. judicial system.
"The history of lynching demonstrates that without a legal code of law, justice is little more than a fleeting passion - mob rule. Indeed, many individuals today may share the sense of anxiety and frustration felt by those first waves of "American" settlers, who regularly bemoaned the length and cost of capital punishment in editorials and published letters. In one such letter, addressing a posse that had set out in search of a band of Latino robbers, an unnamed author echoed the dominant view of the Anglo-American community at the time: 'We hope the companies will shoot down the ruffians, should they find them. We want no prisoners, to saddle the county with their support for months, winding up with the farce of trial and acquittal.'"
Certainly law did exist, both in the South and in the West. However, in thousands of lynchings, it was ignored. Even when the law and rights were supposed to be administered fairly, they were largely turned into a sham, as in the events told of in Devil in the Grove, and in the case of Brown v. Mississippi, 297 U.S. 278 (1936) (confession by torture).
