EARLY LYNCH-LAW
In the preceding chapter we have been concerned with the origin of the
term by which the practice has come to be known. In this chapter we are
concerned with the practice itself. Something of the nature of lynch-law
procedure during the Revolutionary epoch has already become apparent,
but a more detailed investigation into the early history of such
procedure will reveal other characteristics.
It has been said by some that the first instance of the operation of
lynch-law in America was in December, 1763, at Paxtang (now Harrisburg),
Pennsylvania. Indian scalping parties had been laying waste the
settlements with relentless fury, and the appeals of the settlers to the
Quaker government for help had been treated with contempt. Exasperated
at the policy pursued by the Quakers toward the Indians, the
Scotch-Irish who had settled in Lancaster and Cumberland counties formed
several companies of Rangers to patrol the borders and give protection.
“About the middle of December, word was brought to the settlers living
at Paxtang, that an Indian known to have committed depredations in the
vicinity had been traced to Conestoga. Matthew Smith, a man of influence
and popularity among his associates, called together a number of the
Paxtang Rangers, and led them to the Conestoga settlement. One of the
men saw an Indian issuing from a house, and thought that he recognized
him as the savage who had killed his own mother. Firing his rifle, he
brought the Indian down. Then, with a loud shout, the furious mob rushed
into the cabins, and killed all the Indians whom they found there, some
six in number. Fourteen of the Conestogas managed to escape, and,
fleeing to Lancaster, were given a place of refuge in the county jail.
While there, word was again carried to the Paxtang men that an Indian,
known to have murdered the relatives of one of their number, was among
those who had received the protection of the Lancaster magistrates. This
again aroused a feeling of rage and resentment amongst the Rangers. On
December 27, some fifty of them, under the leadership of Lazarus
Stewart, marched to Lancaster, broke open the jail, and with the fury of
a mob massacred every Indian contained therein, man, woman, and
child.”[68]
In connection with this incident it has been suggested that the
Scotch-Irish are to blame for the introduction of lynch-law in America;
that they brought with them traditions of the administration of summary
justice in Mediæval Scotland, and, amidst the perils of the frontier,
quickly resorted to the ancient methods of suppressing violence and
depredation. The case of the Regulators in the Carolinas is also cited
as an instance of the Scotch-Irish backwoodsmen taking the
administration of justice into their own hands, when their rulers failed
to provide for them a safe government. It is said that this same
self-reliant spirit is exhibited in the “family feuds of Kentucky, which
for the most part seem peculiar to families bearing Scottish names.”[69]
Undoubtedly the Scotch-Irish played an important part in the early
history of lynch-law in the United States. But it was rather because
they were the vanguard of a new civilization than because they were of
Scottish descent that they played this important part. Environmental
influences of old had made them pioneers. Before coming to this country
they had behind them a century of frontier life. Their experience in
Ireland, where the soil was poor and where by reason of the difference
in religion they lived apart from, and often in open hostility to, the
natives, led them to be self-reliant and self-assertive. Their training
had thus made them sturdy frontiersmen, quite the sort to subdue the
wilderness and become the founders of a new civilization. Amid the
vicissitudes incident to settlement in a virgin territory it was often
necessary, as a matter of self-preservation, to use prompt and decisive
measures against depredators. That the early settlers did not always
observe “due process of law” can scarcely be urged as deserving
condemnation. They merely adopted the means which seemed to them the
most expedient under the existing circumstances.
The adoption of summary measures by Scotch-Irish Rangers in Pennsylvania
in 1763, however, does not furnish an isolated instance, nor indeed the
earliest instance, of the use of such measures against Indians. The
provincial governments were not infrequently called upon to take note of
such occurrences in order to preserve amicable relations with the
various Indian tribes, and considerable difficulty was commonly
experienced when the attempt was made to bring to justice white men who
had murdered Indians.
In the Province of New Hampshire in June, 1753, two white men killed two
Indians who were accused of having carried off two negroes the preceding
year. After several months the men were arrested, indicted for the
murder, placed in the jail at Portsmouth, and their trial set for March
21, 1754. The night previous to the day appointed for the trial a party
of their neighbors appeared in Portsmouth, broke open the jail and set
them free. “This outrage produced great excitement in the community—some
endeavoring to discover and retake the murderers, and others favoring
their escape. Both the murder and the rescue, however, were generally
justified in the community. And, although rewards were offered by
Governor Wentworth for the apprehension of Bowen and Morrill, yet in a
short time they went openly about their business, without fear of
molestation, and the men engaged in breaking the jail at Portsmouth,
though well known, were never called to account, but, on the contrary,
were considered as having performed a most meritorious act. In fact,
some of the most substantial men in the country were engaged in the
rescue,—by act or advice,—and the Government could not have made an
arrest had they made the attempt. Presents were afterwards made to the
relatives of these Indians by the Government of New Hampshire, and thus
the ‘blood was wiped away’ to the satisfaction of the Indians.”[70]
In May, 1795, in the county of St. Clair in the Illinois country, two
Indians were murdered while they were in the custody of the sheriff who
was conveying them to jail upon warrant. An effort was made to bring the
murderers to justice, but although “the most positive evidence was
adduced to the grand jury against two persons, inhabitants of the county
of St. Clair, that the murder was committed by them,” no bill of
indictment was found against them. Three attempts were made to secure an
indictment from the grand jury, all of which were unsuccessful.
Referring to another instance where Indians were murdered by whites,
which occurred at about the same time but the circumstances of which
were “not only not blameable but laudable,” Governor St. Clair wrote, in
his report to the Secretary of State, “had the affair been ever so
criminal in its nature, it would have been, I believe, impossible to
have brought the actors to punishment.”[71]
In several respects there is a resemblance between the means which were
employed by the early settlers for protection against Indian depredators
and the methods which have been adopted in more recent years for the
punishment of public offenders. In their purpose, in their organization,
and in their summary infliction of the death penalty, the Rangers were
not unlike the vigilance committees which have been closely identified
with the later operation of the frontier type of lynch-law. In breaking
open jails, and, as in Lancaster, Pennsylvania, in massacring inmates
against whom there was a strong popular resentment, or, as in
Portsmouth, New Hampshire, in liberating prisoners whose criminal
conduct was generally justified in the community, there appear some of
the distinctive features which have marked the later operation of
lynch-law in well settled communities. It is also probably true that the
antagonistic relations which existed between the whites and the Indians
during the early history of this country directly encouraged a popular
disregard of all legal procedure on the part of the whites when dealing
with Indians. But the use of summary measures against Indians and the
attendant occurrences can scarcely be said to mark the beginning of the
operation of lynch-law in America. The meaning which was at first
attached to the term Lynch’s law and the nature of the practice which
first came to be known by that name preclude such a beginning for the
practice. Lynch’s law originally corresponded much more closely to what
was known as “regulating,” a practice which was early adopted not only
where the frontier type of society existed, but also where there was the
stable and better organized form of society characteristic of older
communities.
The following appeared in the New York Gazette of December 18, 1752: “We
hear from _Elizabeth-Town_, that an odd Sect of People have lately
appeared there, who go under the Denomination of _Regulars_: there are
near a Dozen of them, who dress themselves in Women’s Cloaths, and
painting their Faces, go in the Evening to the Houses of such as are
reported to have beat their Wives: where one of them entering in first,
seizes the Delinquent, whilst the rest follow, strip him, turn up his
Posteriors and flog him with Rods most severely, crying out all the
Time, _Wo to the Men that beat their Wives_:—It seems that several
Persons in that Borough, (and ’tis said some very deservedly) have
undergone the Discipline, to the no small Terror of others, who are in
any Way conscious of deserving the same Punishment. ’Twere to be wish’d,
that in order for the more equal Distribution of Justice, there wou’d
arise another Sect, under the Title of _Regulatrixes_ who should dress
themselves in Mens Cloathes, and flagilate the Posteriors of the Scolds,
Termagants, &c., &c.”[72]
In a letter dated December 7, 1753, “Prudence Goodwife,” after relating
how her husband beats and maltreats her, writes as follows: “My Case
being happily nois’d abroad, induced several generous young Men to
discipline him. These young Persons do stile, or are stiled, Regulators:
and so they are with Propriety: for they have regulated my dear Husband,
and the rest of the bad Ones hereabouts, that they are afraid of using
such Barbarity; and I must with Pleasure acknowledge, that since my
Husband has felt what whipping was, he has entirely left off whipping
me, and promises faithfully he will never begin again. Tho’ there are
some that are afraid of whipping their Wives, for fear of dancing the
same Jigg; yet I understand, they are not afraid of making Application,
in order to have those dear Regulators indicted; and if they should it
might discourage them for the future, to appear to the Assistance of the
Innocent and Helpless; and then poor Wives who have the unhappiness to
be lockt in Wedlock with bad Husbands, take care of your tender Hides;
for you may depend upon being bang’d without Mercy.”[73]
These may be regarded as sporadic cases of “regulating,” as
illustrations of the kind of “regulating” which is found in a stable and
well organized form of society. They are instances of the infliction of
summary corporal punishment upon individuals for whose punishment under
the law little tangible evidence can be adduced, and the nature of whose
offense is such that legal penalties are popularly believed to be
inapplicable.
In North Carolina, from 1765 to 1771, under frontier conditions combined
with political dissension, “regulation” assumed a well-organized form
and gained considerable strength.[74] The movement was inaugurated in
the north-central part of the province to resist what was considered
oppressive exactions laid by government officials. Specifically, the
grievances were excessive taxes, dishonest sheriffs, and extortionate
fees. A meeting “to inquire into the abuse of power and take proper
measures for amendment” was held at Maddock’s mill on October 10, 1766,
and several resolutions were drafted and adopted.[75] Nothing was done
by the authorities to alleviate the grievances, however, and a general
meeting was held on April 4, 1768, at which the organization into a body
of Regulators was perfected. An agreement was drawn up and the members
bound themselves by oath to its observance. This agreement reads as
follows:
“We the subscribers do voluntarily agree to form ourselves into an
association, to assemble ourselves for conference for regulating
public grievances and abuses of power, in the following particulars,
with others of the like nature that may occur.
“1. That we will pay no more taxes until we are satisfied they are
agreeable to law, and applied to the purposes therein mentioned;
unless we cannot help it, or are forced.
“2. That we will pay no officer any more fees than the law allows,
unless we are obliged to it; and then to show our dislike, and bear an
open testimony against it.
“3. That we will attend our meetings of conference as often as we
conveniently can, and is necessary, in order to consult our
representatives on the amendment of such laws as may be found grievous
or unnecessary; and to choose more suitable men than we have done
heretofore for burgesses and vestrymen; and to petition the houses of
assembly, governor, council, king and parliament, &c., for redress in
such grievances as in the course of the undertaking may occur; and to
inform one another, learn, know, and enjoy all the privileges and
liberties that are allowed and were settled on us by our worthy
ancestors, the founders of our present constitution, in order to
preserve it on its ancient foundation, that it may stand firm and
unshaken.
“4. That we will contribute to collections for defraying necessary
expenses attending the work, according to our abilities.
“5. That in case of difference in judgment, we will submit to the
judgment of the majority of our body.
“To all which we solemnly swear, or being a quaker, or otherwise
scrupulous in conscience of the common oath, do solemnly affirm, that
we will stand true and faithful to this cause, till we bring things to
a true regulation, according to the true intent and meaning hereof, in
the judgment of the majority of us.”[76]
As this agreement indicates, this organization was primarily for the
purpose of “regulating public grievances and abuses of power,” not for
the purpose of bringing to justice public offenders beyond the reach of
law, such as horse thieves and desperadoes. Their methods of procedure,
however, closely resembled those that have been adopted by other bands
of Regulators for the purpose of meting out justice to frontier
criminals. Their favorite method seems to have been to administer
whippings. In an intercepted letter from Rednap Howell to James Hunter,
both leading Regulators, the following passage occurs: “I give out here
that the Regulators are determined to whip every one who goes to law, or
will not pay his just debts, or will not agree to leave his cause to
men, where disputed. That they will choose representatives, but not send
them to be put in jail. In short, to stand in defence; and as to
thieves, to drive them out of the country.”[77] From time to time,
however, serious disturbances and riots occurred. In September, 1770,
about 150 Regulators attacked the superior court which was in session at
Hillsboro, severely whipped several men who had incurred their enmity,
and destroyed considerable property. New laws were hurriedly enacted by
the legislature and the leaders of the riots were arrested, but the
Regulators were not easily subdued or conciliated. In 1771 Governor
Tryon called out the militia, and a battle took place between the
Regulators and the militia, in which the Regulators were utterly
defeated and their organization broken up. Each side, however, had
several men killed and many wounded.
A similar attempt at “regulating” was made in South Carolina at about
the same time.[78] The “Back Country,” as it was called, had become
infested with robbers and brigands. Prior to the year 1769 the only
court of criminal and civil jurisdiction in the Province—except the
courts of Justices of the Peace, which had jurisdiction in civil causes
as high as twenty pounds current money—“was holden in Charlestown.” This
gave practical immunity from punishment to those who were lawlessly
inclined in the distant parts of the Province. As early as the year
1752, the inhabitants along the Pedee River near the mouth of Lynche’s
Creek petitioned the Upper House of Assembly for the creation of a new
county in which twelve or more Justices should be appointed who should
have a general jurisdiction over both civil and criminal causes. This
and other petitions which were presented in the following years from
different parts of the Province received scant attention on the part of
the Provincial Government. For several years the Government did not seem
to comprehend the real nature of the evils, or the remedies necessary to
be applied. Consequently, there was a very decided opposition between
the Regulators and the Government.
The earliest account we have of the operations of the organization which
became known as the Regulators is in the South Carolina Gazette of May
26, 1767, in an extract from a letter from Pine Tree Hill (Camden),
dated May 14, 1767. It is as follows: “On the 6th inst., a number of
armed men, being in search of Horse Stealers, robbers, &c., discovered a
parcel of them in camp on Broad River, where an engagement soon ensued,
and the Thieves were put to flight; and though none of them were taken,
it is reasonable to suppose, from the quantity of blood on the ground,
that some of them were killed. They left behind them ten horses,
thirteen saddles, some guns, &c.”[79]
The South Carolina Gazette of July 27–August 3, in the same year, made
this statement: “The gang of Villains from Virginia and North Carolina,
who have for some years past, in small parties, under particular
leaders, infested the back parts of the Southern Provinces, stealing
horses from one, and selling them in the next, notwithstanding the late
public examples made of several of them, we hear are more formidable
than ever as to numbers, and more audacious and cruel in their thefts
and outrages. ’Tis reported that they consist of more than 200, form a
chain of communication with each other, and have places of general
meeting; where (in imitation of Councils of War) they form plans of
operation and defence, and (alluding to their secrecy and fidelity to
each other) call their places Free Mason Lodges. Instances of their
cruelty to the people in the back settlements, where they rob or
otherwise abuse, are so numerous and shocking, that a narrative of them
would fill a whole _Gazette_, and every reader with horror. They at
present range in the Forks between Broad, Saludy, and Savannah Rivers.
Two of the gang were hanged last week at Savannah, viz., Lundy Hart and
Obadiah Greenage. Two others, James Ferguson and Jesse Hambersam, were
killed when these were taken.”[80]
Apparently, it was for the purpose of breaking up and bringing to
justice this “gang of Villains” that Thomas Woodward, Joseph Kirkland,
and Barnaby Pope “instituted the Regulation.”[81] At any rate, an
organization had been formed in the region surrounding the Broad River,
and, as early as 1767, the members of this organization had come to be
known as Regulators. In an address to both Houses of Assembly, November
5, 1767, the Governor of the Province, referring to the “unhappy
situation in the Back Parts of this Country,” made the following
statement: “The means to suppress those licentious spirits that have so
lately appeared in the distant parts of the Province, and, assuming the
name of Regulators, have, in defiance of Government, and to the
subversion of good order, illegally tried, condemned, and punished many
persons, require an attentive deliberation.”[82]
The courts that were asked for by the inhabitants were not established,
however, and the “regulation” continued. The following is taken from the
South Carolina Gazette of June 13, 1768: “It seems hardly probable that
the disturbances in our back settlements will entirely subside,
notwithstanding all the prudent steps that have been taken, or can be
taken, by the Government to suppress them, until the late Act of the
General Assembly of this Province for establishing Circuit Courts,[83]
takes effect: for we daily hear of new irregularities committed by the
people called Regulators, who, seeming to despair of rooting out those
desperate villains that remain among them any other way, still take upon
themselves to punish such offenders as they can catch. We hear, that
within this month, one Watts and one Distoe, have received 500 lashes
each by their direction; and that an infamous woman has also received
corporal punishment. We hear, also, that one John Bowles has lately lost
his life in attempting to take Mr. Woodward, one of the leaders of the
people called Regulators. According to our account, Woodward, refusing
to surrender himself, Bowles fired at, and would have killed him, but
the ball struck the barrel of a gun which he held across his breast,
upon which, some people in company with Woodward, fired, and killed
Bowles.”[84]
On July 25, the following intelligence was given in the South Carolina
Gazette: “The last accounts from the Back Settlements say, that the
People called the Regulators were to have a meeting at Lynche’s Creek,
on last Friday, where it was expected 1200 would be assembled. The
occasion of this meeting is said to be, a Party of them lately having
been roughly used by a Gang of Banditti, consisting of Mulattoes, Free
Negroes, &c., notorious Harborers of runaway slaves, at a place called
Thompson’s Creek, whom they ordered to remove. It is added, they
anxiously wait to hear the fate of the Act for establishing Circuit
Courts in this Province, sent home for the Royal approbation, which, if
it obtains, will restore good order in those parts.”[85]
The Governor of the Province, not understanding the situation in the
remote settlements, made an attempt to enforce order and compel
obedience to law by sending an officer with full discretionary power
against the Regulators. The course of events is described by Ramsay in
the following words: “The extreme difficulty of bringing criminals from
the remote settlements to a legal condemnation had induced a number of
men, who called themselves regulators, to take the law into their hands.
They, by their own authority, inflicted corporal punishment on sundry
persons without any regular condemnation. To remedy abuses of this kind,
lord Charles Greville Montague, then governor of the province, advanced
to the rank of colonel a man of low character, of the name of Scovil,
and employed him to enforce regular law among these self-constituted
regulators. In execution of his commission he adopted severe measures,
which involved multitudes in great distress.”[86] This Colonel Scovil
(or Schovel—his name is written in various ways), instead of redressing
the grievances on both sides, armed the depredators and paraded them for
battle. Before a battle took place, however, between the Regulators and
the Schofilites, as they were known from the name of their leader, wiser
counsels prevailed and both parties sent delegates to the Governor
asking for his intervention.[87] In this way the disastrous results of
the conflict in North Carolina between the Regulators and the Government
were avoided in South Carolina.
Finally, the necessity for courts in the interior of the Province could
no longer be denied. The Royal approval was given, and in the year 1769
seven new courts, with suitable jails and court-houses, were established
in different parts of the interior.[88] This marked the end of the
Regulation movement in South Carolina. The condition of affairs which
had called it into existence had ceased to prevail and the practice of
“regulating” was, therefore, discontinued.
A single quotation will conclude all that need here be said in regard to
the Regulation in South Carolina. It is an “extract of a letter from a
Gentleman at Pedee, to his friend in Town,” and appeared in the South
Carolina Gazette, September 2, 1768. It reads as follows:
“I wish you would inform me what is generally thought in town of the
Regulators, who now reign uncontrolled in all the remote parts of the
Province. In June, they held a Congress at the Congarees, where a vast
number of people assembled; several of the principal settlers on this
River, men of property, among them. When these returned, they
requested the most respectable people in these parts to meet on a
certain day; they did so, and, upon the report made to them, they
unanimously adopted the Plan of Regulation, and are now executing it
with indefatigable ardour. Their resolution is, in general,
effectually to deny the Jurisdiction of the Courts holden in
Charlestown over those parts of the Province that ought to be by right
out of it; to purge, by methods of their own, the country of all idle
persons, all that have not a visible way of getting an honest living,
all that are suspected or known to be guilty of malpractices, and also
to prevent the service of any writ or warrant from Charlestown; so
that a Deputy Marshal would be handled by them with severity. Against
those they breathe high indignation. They are every day, excepting
Sundays, employed in this Regulation work, as they term it. They have
brought many under the lash, and are scourging and banishing the baser
sort of people, such as the above, with universal diligence.
“Such as they think reclaimable, they are a little tender of; and
those they task, giving them so many acres to tend in so many days, on
pain of flagellation, that they may not be reduced to poverty, and by
that be led to steal from their industrious neighbours. This course,
they say, they are determined to pursue, with every other effectual
measure, that will answer their purpose; and that they will defend
themselves in it to the last extremity. They hold correspondence with
others in the same plan, and are engaged to abide by and support each
other whenever they may be called upon for that purpose. This, it
seems, they are to continue till County Courts, as well as Circuit
Courts, shall be rightly established, that they may enjoy, by that
means, the rights and privileges of British subjects, which they think
themselves now deprived of. They imagine that, as the Jurisdiction of
the Courts in Charlestown extends all over the Province, Government is
not a protection, but an oppression; that they are not tried there by
their Peers; and that the accumulated expenses of a law-suit, or
prosecution, puts justice out of their power; by which means the
honest man is not secure in his property, and villainy becomes rampant
with impunity.
“Indeed, the grievances they complain of are many, and the spirit of
Regulation rises higher and spreads wider every day. What this is to
end in, I know not; but thus matters are situated; an account of
which, I imagine, is not unacceptable, though perhaps disagreeable to
hear.”[89]
This letter may be regarded, upon the whole, as an impartial account of
the Regulation movement in South Carolina.[90] It exhibits the character
of those who were taking the lead in the matter, and indicates the
objects which they proposed to accomplish. It also indicates that their
usual procedure was to whip and banish all persons whom they considered
inimical to the interests of the community. In this respect the
Regulation movement in South Carolina closely resembled the Regulation
movement in North Carolina. It may be said, therefore, that lynch-law
was in operation at this time in the Carolinas, though not known by that
name. The practice of administering corporal punishment for reformatory
or corrective purposes, the practice of “regulating” public offenders
and public grievances, is the essence of lynch-law procedure.
As events shaped themselves for the outbreak of the Revolution in 1775,
conditions became such as to encourage the frequent use of summary
methods of redressing grievances in all of the colonies. The increasing
dissatisfaction among the colonists with the way they were being
governed by the mother country, the obnoxious Stamp Act and other
measures which they thought to be unjustly imposed upon them, rendered
recourse to summary procedure not only easy but popularly
justifiable.[91] It was a time of excitement when neighbor looked upon
neighbor with suspicion and the slightest offense was deemed worthy of
severe punishment. Social conditions were unsettled; the civil
authorities were fast losing the respect and support of the people in
the community; threats and taunts, satire and insult, were
prevalent.[92] Under such conditions it is not strange that summary
procedure came to be in vogue from Maine to Georgia.
Furthermore, during the entire period of the Revolutionary War not only
were the usual unsettled conditions incident to a war prevailing, but,
in addition, there was disaffection and disagreement among the colonists
themselves. Almost every community had its Tories who frequently sought,
openly or secretly, to further the Royal cause and injure the American
cause. In return, the American sympathizers often adopted retaliatory
measures against the Tories. In such cases it was hopeless to appeal to
the civil or the judicial powers for they were badly disorganized. Not
infrequently conditions were such as to preclude action under martial
law, and thus the only recourse possible was the popular administration
of justice in the form of summary procedure of one sort or another.
Particularly characteristic of the Revolutionary period was the practice
of tarring and feathering.[93] It has been said that “this singular
punishment” was begun in America by British troops who tarred and
feathered an inhabitant of the town of Billerica, Massachusetts, on
March 9, 1775.[94] But a number of instances may be cited showing that
this punishment had been administered in more than one of the colonies
several years earlier. It is probable that many of the early immigrants
knew of this manner of punishment before they left their native
shores[95]; at any rate, they did not wait until 1775 for the British
troops to set them an example.[96]
On September 7, 1768, at Salem, Massachusetts, a “Custom-House Waiter”
informed an officer of the customs that some measures had been taken on
board a vessel, in the harbor to elude the payment of certain duties.
This “engaged the Attention of a Number of the Inhabitants. Between the
Hours of Ten and Eleven, A.M. he was taken from one of the Wharves, and
conducted to the common, where his Head, Body and Limbs were covered
with warm Tar, and then a large Quantity of Feathers were applied to all
Parts. The poor Waiter was then exalted to a Seat on the Front of a
Cart, and in this Manner led into the Main Street, where a Paper, with
the Word _Informer_ thereon, in large Letters, was affixed to his
Breast, and another Paper, with the same Word, to his Back. This Scene
drew together, within a few Minutes, several Hundred People, who
proceeded, with Huzzas and loud Acclamations, through the Town.”[97]
On Saturday, September 10, 1768, “two Informers, an Englishman and a
Frenchman, were taken up by the Populace at Newbury-Port, (Mass.) who
tarred them & feathered them; but being late they were hand-cuffed and
put into custody until the Sabbath was over:—Accordingly on Monday
Morning, they were again tarred and rolled in Feathers, then fixed in a
Cart with Halters, and carried thro’ the principal Streets of the
Town.”[98] Upon his release the Englishman, Joshua Vickery by name, went
before a justice of the peace and took oath “that he never did directly
or indirectly make or give any Information to any Officer of the Customs
nor to any other Person either against Capt. John Emmery, or any other
Man whatever; that he was no ways concerned with Francis Magno in his
Information, nor ever wrote one Line for the said Francis, on that
Account.”[99] These statements were corroborated by the Frenchman and it
was shown that the only ground for suspicion against Vickery was the
fact that he had been in the company of the Frenchman on the day that
the “Information” was given.
On the evening of May 18, 1769, at Providence, Rhode Island, Jesse
Saville, “a Tidesman belonging to the Custom-House” who was accused of
“Informing,” was seized by a number of people, stripped naked, covered
from head to foot with turpentine and feathers and severely beaten. “For
the better bringing to Justice and condign Punishment the Authors of
this daring & atrocious Outrage, the Commissioners of His Majesty’s
Customs” offered a reward of fifty pounds sterling for their discovery
and conviction.[100]
A similar case of tarring and feathering, the offender being “a Person
who had informed against a Merchant, respecting a Vessel then in the
West-Indies,” occurred in New Haven, Connecticut, in September,
1769.[101]
In New York, in October, 1769, “one Kelly, an Oysterman, Mitchner, a
Tavern-keeper, and one or two more, having, it is said, made an
Information to the Custom-House Officers, which occasioned the Seizure
of a few Casks of Wine belonging to the Mate of a Vessel, and was, it is
said, the whole Saving he had made of three Years Wages: The Populace
being greatly incensed against the Informers, after several Days Search,
found and seized them, placed and tied them in Carts, and carried them
thro’ great Part of the City, attended with many Thousand People, who
huzza’d, insulted and treated them with the utmost Indignity, often
besmearing their Faces and Clothes with Tar, and sprinkling them with
Feathers.... The Magistrates interposed, but were for some Time unable
to stop the Cavalcade, till the Populace had in some Measure satiated
their Resentment.”[102]
The Boston Chronicle for October 26–30, 1769,[103] contained the
following under the heading of “Boston”: “Last Saturday evening, a
person suspected to be an informer, was stripped naked, put in a Cart,
where he was first tarred, then feathered, and in this condition,
carried through the principal streets of the town, followed by a great
concourse of people.”
During the year 1770 there was much popular feeling against merchants
who imported goods contrary to the non-importation agreement. Such
importers were threatened with many dire punishments including tar and
feathers, and in several instances the threatened punishments were
administered.[104]
At Philadelphia, in October, 1773, a certain Ebenezer Richardson,
accused of “seeking an opportunity to distress the Trade of
Philadelphia,” was publicly notified, by “Tar _and_ Feathers,” of the
punishment which was in store for him, a punishment which he narrowly
escaped by leaving the city “closely pursued by many well-wishers to
peace and good order.”[105]
On November 1, 1773, John Malcolm who had rendered himself obnoxious “by
being an Informer” was “genteely _Tarr’d_ and _Feather’d_” by “about 30
Sailors” at Pownalborough (Mass.).[106] On January 25, 1774, Malcolm was
in Boston, and when some taunting remarks were made to him to the effect
that he had been tarred and feathered but not in the proper manner, he
dared any one to do it better and assaulted one man, slightly injuring
him. In the evening a number of people took Malcolm out, stripped him,
tarred his head and his body, feathered him, set him in a chair in a
cart, and thus carried him through the streets, finally whipping and
beating him before they let him go.[107] On the morning of January 30
the following handbill[108] was found pasted up in the most public
places:
BRETHREN, AND FELLOW-CITIZENS!
This is to Certify, That the modern Punishment lately inflicted on the
ignoble JOHN MALCOLM, was not done by our Order—We reserve that Method
for bringing Villains of greater Consequence to a Sense of Guilt and
Infamy.
JOYCE, jun^r.
(_Chairman of the Committee for_ Taring _and_ Feathering.)
☞ If any Person should be so hardy as to tear this down, they may
expect my severest Resentment.
J. jun.
During the years 1773 and 1774 tea commissioners and tea consignees, in
addition to customs informers and importers of British goods, fell into
popular disfavor, and thus became subjects for tarring and feathering.
“Tiewaghnodago” in the Boston Gazette, December 20, 1773,[109] said that
he had been informed that “some _little_ Shopkeepers in this Town,”
finding that tea was not likely to be used, had raised the price of
coffee a few coppers per pound, and he asked “whether _Tar_ and
_Feathers_ would not be a constitutional encouragement for such eminent
Patriotism.”
In the period 1765–1775 there were likewise cases of mob violence where
houses were attacked and damaged by having missiles thrown at them and
where property was destroyed.[110] In one instance at least the owner of
goods which were destroyed by a mob recovered damages in the courts.
Early in the year 1772, according to S. G. Arnold,[111] there occurred
“a memorable instance of the triumph of law over popular prejudice.” One
David Hill was detected in selling goods included in the non-importation
agreement, and the goods were seized and destroyed by a mob. Hill
brought action in the Rhode Island courts, and the superior court
confirmed the judgment of the inferior court and gave the plaintiff two
hundred and eighty-two pounds damages and costs.
Tarring and feathering was not reserved for certain informers and
importers or for tea consignees alone, however. This punishment was
administered in at least two instances for offenses other than those
growing out of the political controversies of the time.
The Boston Gazette for November 6, 1769,[112] contained the following
item: “Last Thursday Afternoon a young Woman from the Country was
decoyed into one of the Barracks in Town, and most shamefully abused by
some of the Soldiers there:—the Person that enticed her thither with
promises of disposing of all her marketing there (who also belonged to
the Country) was afterwards taken by the Populace and several times
duck’d in the Water at one of the Docks in Town; but luckily for him he
made his escape from them sooner than was intended;—however, we hear,
that after he had crossed the Ferry to Charlestown, on his return home,
the People there being informed of the base part he had been acting,
took him and placed him in a Cart, and after tarring and feathering him
(the present popular Punishment for modern delinquents) they carted him
about that Town for two or three Hours, as a Spectacle of Contempt and a
Warning to others from practising such vile Artifices for the Delusion
and Ruin of the virtuous and innocent: He was then dismissed, and
permitted to proceed to the Town where he belonged, for them to act with
as they should see fit.”
In January, 1774, smallpox became prevalent in Marblehead,
Massachusetts, and an inoculating hospital was erected on Cat Island as
a private enterprise. This hospital, however, was popularly regarded
with suspicion and disfavor, for it was thought to be a source of
contagion. When four men were detected in the act of stealing clothing
from the hospital, they were promptly tarred and feathered, and, after
being placed in a cart and exhibited through the principal streets of
the town, were carried to Salem, accompanied by a procession of men and
boys, marching to the music of a fife and several drums. A number of new
cases of smallpox developed soon after this affair, and popular
indignation ran so high against the proprietors of the hospital that
they were openly threatened with personal violence and were finally
compelled to close its doors. Subsequently a rumor that the hospital was
to be opened again awakened fresh opposition, and on January 26 a party
of disguised men visited the island, and as a result of their visit the
building was completely destroyed by fire. Two men were arrested as
being implicated in the incendiarism and were confined in the Salem
jail, but a large number of men from Marblehead marched to Salem,
surrounded the jail, broke open the doors, overpowered the jailer and
his assistants, released the two prisoners and conducted them home in
triumph. A force of citizens was later organized by the sheriff for the
purpose of going to Marblehead to recapture the men, but when it became
known that an equally large force was organizing and arming in
Marblehead to protect them, the sheriff abandoned his purpose and no
further effort was made to prosecute the incendiaries. Before the
trouble connected with the hospital was finally ended, however, one of
the four men who had been tarred and feathered was again the subject of
popular indignation because of his bringing away clothing from Cat
Island. He was taken from his bed one night by a mob and carried to the
public whipping-post where he was severely whipped and beaten.[113]
During the year 1775, when the spirit of rebellion rose to the height of
armed resistance and open warfare, there was increased occasion for
recourse to summary procedure. In that year mobs gathered in many
places,[114] riots were numerous and cases of tarring and feathering
occurred in several of the colonies.
In June, 1775, Laughlin Martin and James Dealy were stripped of their
clothes, tarred and feathered, and carted through the Streets of
Charleston, South Carolina, by order of the “Secret Committee,” one of
the committees which had been formed to carry on an independent
government in that Province.[115] In August of the same year, this
committee had another man, “a Mr. Walker, Gunner of Fort Johnston,”
treated in the same way.[116]
In September, 1775, James Smith, a judge of the Court of Common Pleas
for Duchess County, New York, together with Coen Smith of the same
place, were “handsomely tarred and feathered” for acting in open
contempt of the resolves of the County Committee. “The judge undertook
to sue for, and recover the arms taken from the Tories by order of said
committee, and actually committed one of the committee, who assisted at
disarming the Tories, which enraged the people so much, that they rose
and rescued the prisoner, and poured out their resentment on this
villanous retailer of the law.”[117]
In December, 1775, “at Quibbletown, New Jersey, Thomas Randolph, cooper,
who had publicly proved himself an enemy to his country, by reviling and
using his utmost endeavors to oppose the proceedings of the continental
and provincial conventions, in defence of their rights and liberties;
and being judged a person not of consequence enough for a severer
punishment, was ordered to be stripped naked, well coated with tar and
feathers, and carried in a wagon publicly around the town—which
punishment was accordingly inflicted. As soon as he became duly sensible
of his offence, for which he earnestly begged pardon, and promised to
atone, as far as he was able, by a contrary behavior for the future, he
was released and suffered to return to his home, in less than half an
hour. The whole was conducted with that regularity and decorum that
ought to be observed in all public punishments.”[118]
In the later years of the Revolution, also, there were cases of tarring
and feathering. At Charleston, South Carolina, in 1776, “John Roberts, a
dissenting minister, was seized on suspicion of being an enemy to the
rights of America, when he was tarred and feathered; after which, the
populace, whose fury could not be appeased, erected a gibbet on which
they hanged him, and afterwards made a bonfire, in which Roberts,
together with the gibbet, was consumed to ashes.”[119]
During the campaign of April to December, 1776, for the possession of
the Hudson River, Tryon, who when governor of North Carolina had led the
militia against the Regulators, was “fomenting plots of a most dastardly
character against the persons and property of patriots. One of these was
the seizure of Washington himself. The plotters were sometimes
discovered, and, when they were, such was the exasperation of the New
York patriots that they did not hesitate to cruelly maltreat them, a
coat of tar and feathers being among the lightest penalties.”[120]
In Virginia the manner of punishing by tarring and feathering was
likewise sometimes followed. According to Wirt, “The name of ‘British
tory’ was of itself enough, at that period (the close of the
Revolution), to throw almost any company in Virginia into flames, and
was pretty generally a signal for a coat of tar and feathers; a signal
which was not very often disobeyed.”[121]
The practice of tarring and feathering was thus mainly confined to cases
in which popular indignation was aroused against Tories, or against
persons expressing Tory sentiments and conspiring to injure the American
cause. It is this fact that makes tarring and feathering particularly
characteristic of Revolutionary times. It is to be remembered, however,
that summary punishment was also administered in other ways. Various
other forms of corporal punishment, as well as the occasional infliction
of capital punishment, were very frequently adopted during the period of
the Revolution.
In the preceding chapter, in the discussion of the origin of the term
lynch-law, the legislative act was cited which indemnified Charles Lynch
and some others for the part which they had taken in suppressing a
conspiracy. A similar act of indemnification was passed by the
legislature of Virginia in the year 1779. This act reads as follows:
“WHEREAS divers evil disposed persons on the frontiers of this
commonwealth had broke out into an open insurrection and conspiracy,
and actually levied war against the commonwealth, and it is
represented to the present general assembly, that William Campbell,
Walter Crockett, and other liege subjects of the commonwealth, aided
by detachments of the militia and volunteers from the county of
Washington, and other parts of the frontiers did by timely and
effectual exertion, suppress and defeat such conspiracy: And whereas
the necessary measures taken for that purpose may not be strictly
warranted by law, although justifiable from the immediate urgency and
imminence of the danger: _Be it therefore declared and enacted_, That
the said William Campbell, Walter Crockett, and all other persons
whatsoever concerned in suppressing the said conspiracy and
insurrection, or in advising, issuing or executing any orders or
measures taken for that purpose, stand indemnified and clearly
exonerated of, and from all pains, penalties, prosecutions, actions,
suits, and damages on account thereof: And that if any indictment,
prosecution, action, or suit, shall be laid or brought against them,
or any of them, for any act or thing done therein, the defendant or
defendants may plead in bar, or the general issue, and give this act
in evidence.”[122]
In the year 1836 the editor of the Southern Literary Messenger said that
frequent inquiry had been made in the preceding year as to the origin of
Lynch’s law. After an allusion to the historical interest of the
subject, he answered the inquiry in the following words:
“It will be perceived from the annexed paper, that the law, so called,
originated in 1780, in Pittsylvania, Virginia. Colonel William Lynch,
of that county, was its author; and we are informed by a resident, who
was a member of a body formed for the purpose of carrying it into
effect, that the efforts of the association were wholly successful. A
trained band of villains, whose operations extended from North to
South, whose well concerted schemes had bidden defiance to the
ordinary laws of the land, and whose success encouraged them to
persevere in depredations upon an unoffending community, was dispersed
and laid prostrate under the infliction of Lynch’s law. Of how many
terrible, and deeply to be lamented consequences—of how great an
amount of permanent evil—has the partial and temporary good been
productive!
“‘Whereas, many of the inhabitants of the county of Pittsylvania, as
well as elsewhere, have sustained great and intolerable losses by a
set of lawless men who have banded themselves together to deprive
honest men of their just rights and property, by stealing their
horses, counterfeiting, and passing paper currency, and committing
many other species of villainy, too tedious to mention, and that those
vile miscreants do still persist in their diabolical practices, and
have hitherto escaped the civil power with impunity, it being almost
useless and unnecessary to have recourse to our laws to suppress and
punish those freebooters, they having it in their power to extricate
themselves when brought to justice by suborning witnesses who do swear
them clear—we, the subscribers, being determined to put a stop to the
iniquitous practices of those unlawful and abandoned wretches, do
enter into the following association, to wit: that next to our
consciences, soul and body, we hold our rights and property, sacred
and inviolable. We solemnly protest before God and the world, that
(for the future) upon hearing or having sufficient reason to believe,
that any villainy or species of villainy having been committed within
our neighborhood, we will forthwith embody ourselves, and repair
immediately to the person or persons suspected, or those under
suspicious characters, harboring, aiding, or assisting those villains,
and if they will not desist from their evil practices, we will inflict
such corporeal punishment on him or them, as to us shall seem adequate
to the crime committed or the damage sustained; that we will protect
and defend each and every one of us, the subscribers, as well jointly
as severally, from the insults and assaults offered by any other
person in their behalf: and further, we do bind ourselves jointly and
severally, our joint and several heirs &c. to pay or cause to be paid,
all damages that shall or may accrue in consequence of this our
laudable undertaking, and will pay an equal proportion according to
our several abilities; and we, after having a sufficient number of
subscribers to this association, will convene ourselves to some
convenient place, and will make choice of our body five of the best
and most discreet men belonging to our body, to direct and govern the
whole, and we will strictly adhere to their determinations in all
cases whatsoever relative to the above undertaking; and if any of our
body summoned to attend the execution of this our plan, and fail so to
do without a reasonable excuse, they shall forfeit and pay the sum of
one hundred pounds current money of Virginia, to be appropriated
toward defraying the contingent expenses of this our undertaking. In
witness whereof we have hereunto set our hands, this 22d day September
1780.’”[123]
The only indication of the source from which the editor obtained this
agreement is found in the reference to “a resident, who was a member of
a body formed for the purpose of carrying it into effect.” It is upon
this reference that its authenticity depends. The agreement sounds
genuine and is not out of harmony with the condition of affairs at that
time in Virginia. Nothing is known, however, of any Colonel William
Lynch in the county of Pittsylvania, Virginia.[124] It is possible that
the man referred to was Colonel Charles Lynch of Bedford County.
An instance of summary corporal punishment occurred in Virginia on
October 10, 1783, as is shown by the following act entitled “_An act of
indemnity to certain persons_”: “_Be it enacted by the General
Assembly_, That all and every person or persons who either directly or
indirectly committed any insult or injury against the person of a
certain Joseph Williamson, on the tenth day of October, in the year one
thousand seven hundred and eighty three, or breach of the peace on that
occasion, and which was previous to the ratification of the definitive
treaty between Great Britain and America, shall be, and they are hereby
respectively indemnified for the same, and shall be exonerated and
discharged of and from any fines, penalties, or forfeitures, which they
might have incurred thereby.”[125]
Judge Roane’s statement that there were many suits in 1792 for
inflicting Lynch’s law indicates that there were many cases of its
infliction in the years preceding that date. It seems probable,
therefore, that the practice of administering corporal punishment in a
summary manner was very prevalent in Virginia from 1780 to 1792.
During the period 1792–1819 accounts of lynch-law procedure are very
rare. There are but few sources of information on the subject during
that period. Indeed, it is true that the chief source of information on
the subject from 1792 to 1830 is the writings of travelers who have
chanced to witness or hear of instances of such procedure.
Under the date of November 29, 1819, W. Faux describes the treatment
given a young Yankee, of the name of Williams, near Princeton, Indiana,
two years earlier. He was suspected of having robbed a store, but only
circumstantial evidence could be adduced against him and he was
acquitted. “The people of the place, however, prejudiced against him, as
a Yankee, deputed four persons to inform him, that unless he quitted the
town and state immediately, he should receive Lynch’s law, that is, a
whipping in the woods. He departed, with his wife and child, next day,
on foot; but in the woods, four miles from Princeton, they were
overtaken by two men, armed with guns, dogs, and a whip, who said they
came to whip him, unless he would confess and discover to them the
stolen money, so that they might have it. He vainly expostulated with
them; but, in consideration of his wife’s entreaties and cries, they
remitted his sentence to thirteen lashes. One man then bound him to a
tree and lashed him with a cow-hide whip, while the other held and
gagged him; the alarmed wife, all the time, shrieking murder. He was
then untied, and told to depart from the state immediately, or he should
receive another whipping on the morrow, as a warning and terror to all
future coming Yankees.
“This poor fellow was of respectable parents at Berlin, in the state of
New York, and possessed a well-informed mind. He quitted the state, and
returning, soon after, to prosecute his executioners, died at
Evansville, before he had effected so desirable an object.”[126]
In “Letters from Illinois,” the second edition of which was published in
London in 1818, Morris Birkbeck writes:
“There is nothing that I anticipate with so much satisfaction and
security as the rapid development of society in our new country. Its
elements are rude certainly, and heterogeneous. The first settlers,
unprotected, and unassisted amid dangers and difficulties, have been
accustomed from early youth to rely on their own powers; and they
surrender with reluctance, and only by halves, their right of defence
against every aggression, even to the laws which themselves have
constituted.
“They have been anxiously studious of mildness in the forming of these
laws, and when, in practice, they seem inefficient, they too
frequently proceed with Indian perseverance to acts of vengeance,
inconsistent with the duty of forbearance essential to social man.
Hence deeds of savage and even ferocious violence are too common to be
viewed with the abhorrence due to them.
“This disposition is evinced continually, and acted on without any
feeling of private or personal animosity.
“If a man, whom the public voice has proclaimed a thief or a swindler,
escapes from justice for want of a legal proof of his guilt, though
the law and a jury of his fellow citizens have acquitted him, ten to
one but he is met with before he can quit the neighborhood, and, tied
up to a sapling, receives a scourging that marks him for the rest of
his life.
“In Kentucky, whose institutions have acquired greater maturity, such
events _have_ taken place some years ago; but now they would scarcely
be tolerated, and they will soon be matter of history only, in Indiana
and Illinois.
“No crime but murder ‘of the first degree’ is punished with death, in
any of the western states, nor, I believe, in the Union. In Kentucky
there is a general penitentiary, for the punishment of other offences
by imprisonment and labour.”[127]
William Newnham Blane, who traveled through the United States and Canada
in the years 1822 and 1823, described the lynch-law procedure of that
time as follows:
“After leaving Carlyle, I took the Shawnee town road, that branches
off to the S. E., and passed the Walnut Hills, and Moore’s Prairie.
These two places had a year or two before been infested by a notorious
gang of robbers and forgers, who had fixed themselves in these wild
parts, in order to avoid justice. As the country became more settled,
these desperadoes became more and more troublesome. The inhabitants
therefore took that method of getting rid of them, that had been
adopted not many years ago in Hopkinson and Henderson counties
Kentucky, and which is absolutely necessary in new and thinly settled
districts, where it is almost impossible to punish a criminal
according to legal forms.
“On such occasions therefore, all the quiet and industrious men of a
district form themselves into companies, under the name of
‘Regulators.’ They appoint officers, put themselves under their
orders, and bind themselves to assist and stand by each other. The
first step they then take, is to send notice to any notorious
vagabonds, desiring them to quit the State in a certain number of
days, under the penalty of receiving a domiciliary visit. Should the
person who receives the notice refuse to comply, they suddenly
assemble, and when unexpected, go, in the night time, to the rogue’s
house, take him out, tie him to a tree, and give him a severe
whipping, every one of the party striking him a certain number of
times.
“This discipline is generally sufficient to drive off the culprit; but
should he continue obstinate, and refuse to avail himself of another
warning, the Regulators pay him a second visit, inflict a still
severer whipping, with the addition probably of cutting off both his
ears. No culprit has ever been known to remain after a second visit.
For instance, an old man, the father of a family, all of whom he
educated as robbers, fixed himself at Moore’s Prairie, and committed
numerous thefts, &c. &c. He was hardy enough to remain after the first
visit, when both he and his sons received a whipping. At the second
visit the Regulators punished him very severely, and cut off his ears.
This drove him off, together with his whole gang; and travellers can
now pass in perfect safety, where it was once dangerous to travel
alone.
“There is also a company of Regulators near Vincennes, who have broken
up a notorious gang of coiners and thieves who had fixed themselves
near that place. These rascals, before they were driven off, had
parties settled at different distances in the woods, and thus held
communication and passed horses and stolen goods from one to another,
from the Ohio to Lake Erie, and from thence into Canada or the New
England States. Thus it was next to impossible to detect the robbers,
or to recover the stolen property.
“While I was staying at the house of a Mr. Mulligan in Illinois,
thirty miles from St. Louis, one of the men, who had belonged to the
gang near Vincennes, was taken up on the charge of passing counterfeit
money....
“This practice of _Regulating_ seems very strange to an European. I
have talked with some of the chief men of the Regulators, who all
lamented the necessity of such a system. They very sensibly remarked,
that when the country became more thickly settled, there would no
longer be any necessity for such proceedings, and that they should all
be delighted at being able to obtain justice in a more formal manner.
I forgot to mention, that the rascals punished, have sometimes
prosecuted the Regulators, for an assault. The juries however, knowing
the bad characters of the prosecutors, would give but trifling
damages, which divided among so many, amounted to next to nothing for
each individual.”[128]
In a book entitled “Letters from the West,” which was published in
London in 1828, Judge James Hall wrote on the subject of lynch-law as
follows:
“Among the early settlers there was a way of trying causes, which may
perhaps be new to you. No commentator has taken any notice of _Linch’s
Law_, which was once the _lex loci_ of the frontiers. Its operation
was as follows: When a horse thief, a counterfeiter, or any other
desperate vagabond, infested a neighborhood, evading justice by
cunning, or by a strong arm, or by the number of his confederates, the
citizens formed themselves into a ‘_regulating company_,’ a kind of
holy brotherhood, whose duty was to purge the community of its unruly
members. Mounted, armed, and commanded by a leader, they proceeded to
arrest such notorious offenders as were deemed fit subjects of
exemplary justice; their operations were generally carried on in the
night. Squire Birch, who was personated by one of the party,
established his tribunal under a tree in the woods, and the culprit
was brought before him, tried, and generally convicted; he was then
tied to a tree, lashed without mercy, and ordered to leave the country
within a given time, under pain of a second visitation. It seldom
happened, that more than one or two were thus punished; their
confederates took the hint and fled, or were admonished to quit the
neighborhood. Neither the justice nor the policy of this practice can
be defended; but it was often resorted to from necessity, and its
operation was salutary, in ridding the country of miscreants whom the
law was not strong enough to punish. It was liable to abuse, and was
sometimes abused; but in general, it was conducted with moderation,
and only exerted upon the basest and most lawless men. Sometimes the
sufferers resorted to courts of justice for remuneration, and there
have been instances of heavy damages being recovered of the
_regulators_. Whenever a county became strong enough to enforce the
laws, these high-handed doings ceased to be tolerated.”[129]
In the above extracts we have a fair description of the operation of
lynch-law as it was carried westward by the emigrants from Virginia and
the neighboring States. The weakness and inadequacy of the civil
regulations, and the presence of such criminals as the horse-thief, the
counterfeiter, the robber, and the desperado, who find the frontier both
a retreat from the consequences of past crime and a new theater for the
perpetration of crime, gave a constant justification for recourse to
lynch-law.
The usual manner of proceeding was for the settlers to consult together
and in a more or less formal way to establish “the institution of
Regulators.” Sometimes the Regulators were small bodies of men chosen by
the people to look after the interests of the community—in effect, they
were committees of safety. At other times, the Regulators were bodies of
men who voluntarily assumed the duty of policing a district. The duties
of such companies, whether known as Regulators or as Rangers or by some
other name, were to ferret out and punish criminals, to drive out
“suspicious characters,” and to exercise a general supervision over the
interests of the settlements in which they lived. Their statute-book was
the “code of his honor, Judge Lynch”[130]; their order of trial was
similar to that of a “drum-head court-martial”; the principles of their
punishment were certainty, rapidity, and inexorability. They were in
themselves judges, juries, witnesses, and executioners.
These bodies of men bound themselves by a regular compact, to the people
and to each other, to rid the community of all thieves, robbers,
plunderers, and villains of every description. Such compacts were
usually verbal but they were sometimes in writing.[131] The compact
entered into by the Regulators of North Carolina has already been cited.
If the agreement of 1780 in Virginia, to which the editor of the
Southern Literary Messenger gave his indorsement, be accepted as
genuine, we have a record of another such compact. There is recorded,
also, a compact entered into by a company of Regulators in Illinois in
1820. It reads as follows:
“_Know all men by these presents_:
“That we (_here follow twelve names_), citizens of —— settlement, in
the state of Illinois, have this day, _jointly and severally_, bound
themselves together as a company of Rangers and Regulators, to protect
this settlement against the crimes and misdemeanors of, all and
singular, every person or persons whomsoever, and especially against
_all horse-thieves, and renegades, and robbers_. And we do by these
presents, hereby bind ourselves, jointly and severally as aforesaid,
unto each other, and to the fellow-citizens of this settlement, to
punish, according to the code of his honor, Judge Lynch, all
violations of the law, _against the peace and dignity of the said
people of_ —— settlement; and to discover and bring to speedy
punishment, _all illegal combinations_—to rid the country of such as
are dangerous to the welfare of this settlement—to preserve the peace,
and _generally to vindicate the law_, within the settlement aforesaid.
All of which purposes we are to accomplish as peaceably as possible:
_but we are to accomplish them one way or another_.
“In testimony whereof, we have hereunto set our hands and affixed our
seals, this twelfth day of October, _Anno Domini_, eighteen hundred
and twenty.
(Signed by twelve men.)
“Acknowledged and subscribed in the presence of
“C——T. H——n,
“J——P. D——n,”
and five others, who seem to have been a portion of “the fellow-citizens
of this settlement,” referred to in the document.[132]
The companies of Regulators were generally organized only temporarily to
meet some emergency in particular communities. The one striking
exception is the Regulation movement in the Carolinas. The circumstances
surrounding that movement, however, were not paralleled elsewhere. The
duration and strength of the organization there, was undoubtedly due to
the prominence of the political factor in its existence. Leaving out of
consideration the Carolina Regulation and the summary practices which
were incident to the Revolutionary War, there existed almost exclusively
down to 1830 what may be called the frontier type of lynch-law pure and
simple. This form of lynch-law procedure has always been justified on
the ground of necessity, and has been condemned only because of its
liability to abuse. As one writer has said, referring to the Regulators:
“Their acts may sometimes have been high-handed and unjustifiable, but
on the whole—and it is only in such a view that social institutions are
to be estimated—they were the preservers of the communities for whom
they acted. In time, it is true, they degenerated, and sometimes the
corps fell into the hands of the very men they were organized to punish.
“Every social organization is liable to misdirection, and this, among
others, has been perverted to the furtherance of selfish and
unprincipled purposes; for, like prejudices and habits of thought,
organized institutions frequently survive the necessities which call
them into existence. Abuses grow up under all systems; and, perhaps, the
worst abuse of all, is a measure or expedient, good though temporary,
retained after the passing away of the time for which it was
adopted.”[133]
If it be said that “all law emanates from the people, and is, in fact,
whether written or not, nothing more or less than certain rules of
action by which a people agree to be governed,” then the frontier type
of lynch-law is scarcely more than one step removed from genuine law.
For instance, in the year 1834, a large number of persons, citizens of
the United States, but of no particular state or territory, and beyond
the pale of the regular operations of the law, were collected at a place
called _Dubuque’s mines_, west of the Mississippi, and north of the
State of Missouri. On May 29 of that year, Patrick O’Conner, who had the
reputation of being a desperate character, shot and killed George
O’Keefe. O’Conner “was arrested by mutual consent of all parties, and,
on the next day, was duly tried, by a jury of twelve citizens, taken
from the multitude. Privilege was given to the prisoner to object to all
such as he chose not to be tried by, and he made no objections to the
mode of trial. He was allowed the privilege of choosing a friend to
counsel with him, and assist in conducting the trial.”
After hearing the testimony of the witnesses that were called, the jury
retired, and “after a session of about two hours,” returned the
following verdict: “We, the jury selected to try Patrick O’Conner, for
the murder of George O’Keefe, on the 29th inst. after examining the
witnesses on oath, and attentively hearing and considering the testimony
against the prisoner, do unanimously agree that the said O’Conner is
guilty of murder in the highest degree, and are of opinion that the said
O’Conner has done an act which, in a land of laws, would forfeit his
life. And inasmuch as the security of the lives of the good citizens of
this country requires that an example should be made, to preserve order
and convince evil disposed persons that this is not a place where the
lives of men may be taken with impunity—we are of opinion that the said
O’Conner should be carefully secured until the 20th day of June, and
that, at the hour of 12 o’clock, of said day, the said Patrick O’Conner
be conducted to the place of execution, and there be hung by the neck
until he is dead.” This verdict was signed by the twelve members of the
jury.
Pursuant to a public notice, a meeting of the citizens was held on June
17 to make arrangements for the execution of O’Conner on June 20. L.
Wheeler was requested to take command of a company of volunteers to act
as a guard. A committee of three was appointed to make the necessary
arrangements for the execution and burial of O’Conner. Henry Adams was
requested to act as sheriff on the day of the execution. A committee of
three was appointed to collect sums to defray the necessary expense “for
the keeping, executing, burial, &c., of said O’Conner.” It was voted
that the sheriff be allowed the sum of twenty-five dollars for the
keeping and execution of said O’Conner; and that if there were anything
over and above that amount, after all necessary expenses were paid, the
same should go to the executioner.
“At 12 o’clock, on the day of the execution, the prisoner was taken from
his place of confinement, under a guard of a company of volunteers,
commanded by L. Wheeler, to the place of execution, where had assembled
about 1,500 citizens. He was placed on a cart, the rope was made fast to
the gallows, when the cart was driven away, leaving the prisoner
suspended between the heavens and the earth.
“The whole proceedings were carried on with the utmost regularity and
good order. By mutual consent of all, every coffee house was kept
closed, and not a drop of spirits was sold until after the
execution.”[134]
At the time of this affair no judicial or civil regulations were yet
established in that region. Under these circumstances, then, was Patrick
O’Conner legally executed or was he executed by lynch-law? Doubtless
most men will agree that he was, to all intents and purposes, legally
executed, and yet many instances of the operation of lynch-law on the
frontier were scarcely less justifiable, though the trial and infliction
of punishment may have been far more summary.
In general, the punishments administered under lynch-law previous to
1830 were not severe, usually consisting of a whipping, or some other
form of corporal punishment, and banishment after a specified time.
Niles’ Register for July 17, 1824 (26: 326) contains the following:
“Kentucky.—Several murders have lately been committed in this state by
persons who call themselves ‘regulators’—but effectual measures have
been taken to arrest and punish them.” This case was evidently an abuse
of lynch-law; a band of desperadoes, presumably, adopted the name of
“regulators” as a cloak for their misdeeds, and thus sought immunity
from punishment. Capital punishment was very rarely inflicted by the
substantial and respectable settlers who sometimes found it necessary to
use lynch-law methods at this early period.
It thus appears that the summary and extra-legal methods of punishment
adopted during colonial times, and the summary practices of the time of
the Revolution, were carried by the emigrants from the original colonies
as they pushed the line of the frontier further and further to the
westward. Frequent occasion was found on the frontier for the use of
such methods and practices to curb the activity of the lawless and the
vicious. When the legislature of Virginia authoritatively declared that
circumstances may arise under which measures, though not strictly
warranted by law, are justifiable from the imminence of the danger, it
gave expression to a principle which found ready acceptance among the
early settlers exposed to the dangers and vicissitudes of frontier life.
Though the statement of the principle by the legislature of Virginia may
not have been known, and probably was not known, to very many of those
who took an active part in the subsequent history of lynch-law,
nevertheless the principle itself was a matter of common knowledge, for
it was in the air, as it were, and it was repeatedly embodied in action.
In reality, the subsequent history of lynch-law is but the working out
of this principle under varying conditions.