CHAPTER III

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.

Lynch-law; an investigation into the history of lynching in the United States · 第 3 / 10 章