CHAPTER VII

LYNCH-LAW AND ITS JUSTIFICATION

For more than a century the principle laid down by the legislature of

Virginia has been appealed to as a justification for recourse to

lynch-law. In Revolutionary times it was held that the immediate urgency

and imminent danger of the situation justified the summary and

extra-legal measures that were taken to suppress conspiracies against

American patriots. On the frontier it was urged that the imminence of

the danger warranted summary procedure against desperadoes and

marauders, at first merely whipping and banishment, later hanging and

summary execution. In the time of the anti-slavery agitation

circumstances had arisen under which measures, though not strictly

warranted by law, were held to be justifiable from the nature of the

offense. In the opinion of the slave-holder summary treatment in the

form of flogging, tarring and feathering, and banishing the abolitionist

was wholly justifiable. The doctrine that “when the law is inefficient

to take hold of a man the people should” was again and again referred to

in support of the summary punishment of the abolitionists.

Hidden away in Judge Lawless’s charge to the St. Louis grand jury is the

same principle.[223] If the lawless violence was the work of the “many,”

if it was committed by a representative number of the citizens while in

a state of frenzy and excitement, it must be considered beyond the reach

of human law. In 1839, W. E. Channing stated the principle in the

following words: “Undoubtedly there may be crimes, so unnatural, so

terrible to a community, that a people may be forgiven, if, deeming the

usual forms of justice too slow, they assume the perilous office of

inflicting speedy punishment.... There is, indeed, as I have intimated,

one case where popular commotion does comparatively little harm, I mean

that which is excited by some daring crime, which the laws sternly

forbid, and which sends an electric thrill of horror through a virtuous

community. In such a case, the public without law do the work of law,

and enforce those natural, eternal principles of right, on which all

legislation should rest.”[224]

Governor Lynch, of Mississippi, in his message to the State legislature

in 1836, used the following language with reference to the hanging of

the Vicksburg gamblers: “However we may regret the occasion, we are

constrained to admit that necessity will sometimes prompt a summary mode

of trial and punishment unknown to the law.”[225]

A few years later Captain Marryat wrote:

“Englishmen express their surprise that in a moral community such a

monstrosity as Lynch law should exist; but although the present

system, which has been derived from the original Lynch law, cannot be

too severely condemned, it must, in justice to the Americans, be

considered that the original custom of Lynch law was forced upon them

by circumstances.... In its origin the practice was no more blameable

than were the laws established by the Pilgrim fathers on their first

landing at Plymouth, or any law enacted amongst a community left to

themselves, their own resources, and their own guidance and

government. Lynch law, as at first constituted, was nothing more than

punishment awarded to offenders by a community who had been injured,

and who had no law to refer to, and could have no redress if they did

not take the law into their own hands; the _present_ system of Lynch

law is, on the contrary, an illegal exercise of the power of the

majority in opposition to and defiance of the laws of the country, and

the measure of justice administered and awarded by those laws.

“It must be remembered that fifty years ago, there were but few white

men to the westward of the Alleghany Mountains; that the States of

Kentucky and Tennessee were at that time as scanty in population as

even now are the districts of Ioway and Columbia; that by the

institutions of the Union a district required a certain number of

inhabitants before it could be acknowledged as even a district; and

that previous to such acknowledgment, the people who had _squatted_ on

the land had no claim to protection or law. It must also be borne in

mind, that these distant territories offered an asylum to many who

fled from the vengeance of the laws, men without principle, thieves,

rogues, and vagabonds, who escaping there, would often interfere with

the happiness and peace of some small yet well-conducted community,

which had migrated and settled on these fertile regions. These

communities had no appeal against personal violence, no protection

from rapacity and injustice. They were not yet within the pale of the

Union....

“It was, therefore, to remedy the defect of there being no established

law, that Lynch law, as it is termed, was applied to; without it, all

security, all social happiness would have been in a state of abeyance.

By degrees, all disturbers of the public peace, all offenders against

justice met with their deserts; and it is a query, whether on its

first institution, any law from the bench was more honestly and

impartially administered than this very Lynch law, which has now had

its name prostituted by the most barbarous excesses and contemptuous

violation of all law whatever. The examples I am able to bring forward

of Lynch law, in its primitive state, will all be found to have been

based upon necessity, and a due regard to morals and to justice.”[226]

In 1843 the practice of employing lynch-law in frontier settlements was

justified in the following way: “Until the law ... is completely

established the Lynch tribunals assert a concurrent jurisdiction, so to

speak, with the ordinary courts; and this jurisdiction they preserve

until the population loses the habit of resorting thereto, and acquires

that of confiding in the protection afforded by the legal tribunals; a

change of habit which takes place, we believe, as soon as those

tribunals have power to protect. In a new and thinly peopled country

every man feels that he may at any time be called upon to act as his own

protector. A habit of self-reliance is thus generated which time alone

can convert into a habit of relying upon the law.”[227]

In a book descriptive of border life in Texas, which was published in

1852, the frontier type of lynch-law received the following

justification:

“It is the stern primary law of self-preservation—this border custom

of bringing criminals before the whole body of citizens for

judgment—from which men sitting beside law-guarded hearths recoil in

dismay, and hearing only its cruel side, stigmatize as the utterly

unpardonable Lynch Law. Most true it is, that nothing but urgent and

deplorable necessity will drive a just and merciful man to participate

in its tribunals, but it is not less true that in frontier

settlements, if the fear of its quick vengeance did not overawe the

wicked, the innocent and peaceful would be in hourly danger of wrong

and outrage....

“The wild verdicts borderers sometimes enact, in the faith that they

are just and needful, sound uncouthly to those fenced round with

regular courts, and must seem dreadful to Christian men accustomed to

the solemn decorum with which constituted courts deal out their legal

awards of chains, lashes, and hangings; yet, seen close at hand, with

a knowledge of the situation of the community, and of the life and

deeds of the evil-doer, many of Judge Lynch’s verdicts will appear

more just and necessary than half of the sentences of the regular

courts....

“Statute law is but the formal expression of what the larger community

deems wisest and most just for the general welfare, the small, crude,

remote settlement does the same for itself; only without writing down

its enactments, and in the more summary way enforced by its peculiar

situation. It has no prison houses in which to detain a criminal, no

courts in which to try him, no funds wherewith to support him in long

duress. If a crime is committed the accused has the whole community

for judges and jury, and if he is found guilty by common suffrage they

proceed to execute the verdict.”[228]

Another writer carries the vindication of the frontiersmen and pioneers

still further by attributing culpability to the United States government

for not providing remote settlements with legal tribunals, so that

recourse to lynch-law would have been unnecessary. He writes: “The

greater share of the sin and disgrace falls upon the government, which

leaves to its citizens a heavy and responsible office, that ought to be

guarded by all the solemnities and securities of law.”[229]

Such are the arguments and the lines of reasoning by which the operation

of lynch-law previous to the Civil War was generally justified.[230]

Vindication was urged on grounds of necessity or self-preservation and

the nature of the offense, and it was lynch-law as applied to whites

that was thus vindicated.

The anti-slavery agitation and the emancipation of the slaves brought to

the support of lynch-law procedure another factor—that of race

prejudice. The number of negroes lynched in recent years as compared

with the number of whites lynched has indicated so clearly the existence

of race prejudice that many writers have given to it the chief place

among the causes of lynchings. It is a mistake, however, to consider

this race prejudice as of recent origin in the United States.

Race prejudice between the whites and the negroes in this country began

with the landing of the first ship-load of slaves in Virginia. In

describing the condition of the negroes in the colony of Virginia,

George W. Williams says: “It was not a mitigating circumstance that the

white servants of the colony who came into natural contact with the

Negroes were ‘disorderly persons,’ or convicts sent to Virginia by an

order of the King of England. It was fixed by public sentiment and law

that there should be no relation between the races. The first

prohibition was made September 17, 1630. Hugh Davis, a white servant,

was publicly flogged ‘before an assembly of Negroes and others,’ for

defiling himself with a Negro. It was also required that he should

confess as much on the following Sabbath.... All intercourse was cut off

between the races. Intermarrying of whites and blacks was prohibited by

severe laws. And the most common civilities and amenities were frowned

down when intended for a Negro. The plantation was as religious as the

Church, and the Church was as secular as the plantation. The ‘white

Christians’ hated the Negro, and the Church bestowed upon him a most

bountiful amount of neglect.”[231]

The importation of negroes from Africa into this country brought a

stream of racial heredity from the torrid zone to mingle with a similar

stream which had its origin and development in the north temperate zone.

When these two streams met, the chief characteristics of the former

were: civilization of a very low level; no letters or art or science,

language in the agglutinative state; industries confined to a very

elementary agriculture, fishing, a little hunting, and some simple

handicrafts; no religion except that which explains all natural

phenomena by reference to spirits, mostly ill-disposed towards man;

physical and psychic characteristics substantially uniform, only trained

observers being able to detect differences here and there. The stream

from the north temperate zone, on the contrary, was characterized by an

hereditary endowment delicately adjusted to the highest civilization

recorded in history. A difference and contrast better adapted to

bringing about racial antagonism can scarcely be conceived.[232]

On both physical and psychic grounds there is reason for an antagonistic

feeling between the white race and the black race. Physically there is

great diversity between the racial types of the two races. The color of

the negro’s skin, his kinky hair, and his general physiognomy,

especially his flat nose and protruding lips with receding (actual or

apparent) forehead,—all are widely diverse from the white man’s standard

of beauty and symmetry. Measured by the Caucasian ideal the features of

the negro are coarse and animal-like. To most white persons, also, the

odor arising from an assemblage of negroes is extremely disagreeable,

and some negroes say that they find the odor of white persons similarly

distasteful.[233] With reference to the psychic characteristics of the

two races, their intellectual and moral traits, there is even greater

diversity. In their religion, and essential manners, customs, and habits

of thought, the differences are so great as to constitute almost

opposite extremes. There is a total lack of anything like a community of

interest between the two races. Members of the white race and of the

black race do not find satisfaction in intermarriage and mingling

together around the hearthstone. The whites and the blacks never have

associated and do not to-day associate together in public and in private

as one people.[234]

When two races, occupying the same territory and living side by side,

differ so widely in their physical features, in their interests and in

their attainments, as do the white and colored races in this country, it

is most natural and indeed almost inevitable that prejudice should arise

between them. The institution of slavery has no doubt created a caste

feeling on the part of the master race, and yet this is but the

strengthening and deepening of a natural race antipathy, the causes for

which are evident. Slavery merely intensified a feeling that was due to

other causes. It is an error to say that slavery has been the cause of

all the prejudice against the negro.[235] It is true that the black race

long wore the chain of slavery and was regarded as an inferior race, and

this was true in the United States as well as elsewhere; but the reason

for the antagonistic feeling lies deeper than that fact.[236]

An indication of the existence of racial prejudice during the period of

slavery is found in a report adopted at the “Second Annual Convention of

the People of Color” which met at Philadelphia in June, 1832. This

convention, composed of free negroes, adopted a resolution in which the

following passage occurs: “The recent occurrences at the South have

swelled the tide of prejudice until it has almost revolutionized public

sentiment, which has given birth to severe legislative enactments in

some of the States, and almost ruined our interests and prospects in

others, in which, in the opinion of your Committee, our situation is

more precarious than it has been at any other period since the

Declaration of Independence. The events of the past year have been more

fruitful in persecution, and have presented more inducements than any

other period of the history of our country, for the men of color to fly

from the graves of their fathers, and seek new homes in a land where the

roaring billows of prejudice are less injurious to their rights and

privileges.”[237]

To this view of the matter there is an apparent objection. It would seem

that if race prejudice existed during the time of slavery, it should

have manifested itself in the form of summary treatment of the negroes

more frequently than it did. In general, however, there was no occasion

for its manifestation. So long as the blacks were valuable as slaves and

accepted their inferior position without protest, no one wanted to get

rid of them or put them to death. The fact that slaves were property,

and in that capacity were amenable to the laws, made recourse to

unlawful procedure against them both unwise and unnecessary. It was only

in cases of insurrection among the slaves, or when some especially

brutal and barbarous crime was committed by a negro, that summary

measures were adopted prior to the Civil War. At such times negroes were

killed without mercy, sometimes they were tortured and their bodies

mutilated while still alive, and occasionally they were burned to death.

But these were extraordinary occasions; ordinarily the law was allowed

to take its course.[238]

A careful study of the relations which existed between the two races

from 1619 to 1860 will reveal the presence of more or less racial

antipathy. The institution of slavery, however, acted as a check to the

manifestation of this antagonistic feeling as regards the manner of

procedure for the punishment of negroes accused of serious offenses.

“Slavery was, in its way, a thoroughgoing school; the negro race was

educated in the cotton-fields and cabins of the South. In the Old South

there was very little negro crime and no negro idleness. The negro

worked under direction; he was taught how to work; he cheerfully

accepted his work, and he was the soul of fidelity, as the history of

the war proved.”[239] Restraints were placed around him; he received

protection and guardianship; and, above all, he received an industrial

training which gave him some degree of control over his own impulses and

actions. He was looked upon and governed as a child, and he was punished

as a child when he committed a breach of the peace or some serious

offense against person or property. The legal procedure for the

punishment of negroes, based upon the property right in slaves, was in

perfect accord with the order of society that had been established

during two hundred years or more of slavery.

When the institution of slavery was attacked in the early thirties and

during the years of controversy which followed, and still more when it

was finally overthrown in the sixties, race prejudice began to manifest

itself in the manner of treatment accorded negro criminals. By the

emancipation of the slaves in 1863, under the existing conditions,

absolutely no restriction was left upon its manifestation, for the

property right in the negro had been swept away and the great mass of

the negroes, finding all the old restraints suddenly removed, naturally

mistook liberty for license and committed many excesses. Large numbers

of negroes ceased to work. “The worst instincts of the negro came to the

front; the percentage of criminals among negroes increased to an

alarming extent; many were guilty of crimes of violence of the most

heinous and repulsive kind.”[240] The result of emancipation had not

been fully anticipated and no adequate legal provision was made for the

control of the freedmen. The foundation had been removed from the old

legal system and no new system was established in the place of the old

one which to any degree could cope with the condition of affairs.

Further, not only did the emancipation of the slaves leave no

restriction upon the manifestation of race prejudice in the form of

summary procedure against negro criminals, but the sudden elevation of

the negroes to political equality with the whites directly encouraged

its display. “Two hundred years or more of slavery educated both the

white and the black to a fixed order of society, in which the negro was

the servant and the white man the master. In one generation, through as

devastating a war as any country ever experienced, slavery was

abolished, the vast property interests in the slave destroyed, the

structure of society reversed, the master put at the bottom and the

slave at the top.”[241] In the light of subsequent history a greater

mistake could scarcely have been made than that of giving the elective

franchise to the newly emancipated slave. He was far from being a fully

developed man capable of exercising the duties of citizenship in a

democratic government, but in the legal institutions which were

established in the South during the period of Reconstruction it was

assumed that he was entitled to an equal share in the government with

his former master. A legal system was established which had no basis in

the order of society then existing. The result was enmity and bitterness

between whites and blacks at a time when there should have been sympathy

and forbearance, and summary and illegal measures were adopted by the

whites to prevent negro domination.

Any one who would deal intelligently with the questions presenting

themselves in the South to-day must recognize the existence of a racial

prejudice. In some respects it is an unreasoning prejudice, a prejudice

in the extreme sense of the word, but there is also a real and

substantial basis for such racial antipathy, and it is a feeling which

is not likely to disappear for generations to come. It must be taken

into account in the consideration of all remedies proposed for existing

evils in the South. It is something that cannot be removed by

legislative enactments; neither can it be destroyed by constant crying

out against it. While it does not justify the lynching of negroes, it

does furnish a standpoint from which justification is easy, and it is a

fact which makes the prevention of such lynchings extremely difficult,

particularly where brutal crimes are committed upon whites by negroes.

The commonest justification for lynching negroes in recent years, the

plausibility of which rests very largely on race prejudice, is the crime

of rape as directed against white women. According to Tillinghast this

crime has come into existence since the Civil War, and its perpetrators

are overcome in many cases by primitive passions which master the

criminal’s whole being, a great fear being present also which impels to

murder.[242] Strictly speaking, this crime has not come into existence

since the Civil War. It is not a new crime to the negro. It has merely

increased and become more common along with the general increase in

criminality manifest in the negro race since emancipation.[243]

In colonial times laws were in force in a number of the colonies

providing for the punishment of rape committed by negroes on white

women, and there were numerous instances of the perpetration of this

crime.[244]

In the year 1705 the Assembly of the Province of Pennsylvania enacted

that “WHEREAS some Difficulties have arisen within this Province, about

the Manner of Trial and Punishment of _Negroes_ committing Murder,

Manslaughter, Buggery, Burglary, Rapes, Attempts of Rapes ... it shall

and may be lawful for two justices of the Peace of this Province, who

shall be particularly commissionated by the Governor for that Service,

within the respective Counties thereof, and Six of the most substantial

Freeholders of the Neighbourhood to hear, examine, try and determine ...

and shall be punished by Death. And for an Attempt of Rape or Ravishment

on any white Woman or Maid, and for robbing, stealing, or fraudulently

taking and carrying away any Goods, living or dead, above the Value of

_Five Pounds_, every _Negroe_, upon Conviction of any of said Crimes,

shall be whipped Thirty-nine Lashes, and branded on the Forehead with

the Letter R or T, and exported out of this Province by the Master or

Owner, within Six Months after Conviction, never to return into the

same, upon Pain of Death, and shall be kept in Prison till Exportation

at their Masters or Owners or their own Charge.”[245]

By an act passed December 10, 1712, the colony of New York provided that

“all and every Negro Indian or other Slave, who ... shall murder or

otherwise kill ... or conspire or attempt the Death of any of Her

Majesty’s liege people, not being Slaves, or shall commit or attempt any

rape on any of said Subjects, or shall wilfully burn any dwelling-house,

barn, etc. ... or shall wilfully mutilate, mayhem or dismember any of

the said Subjects not being Slaves as aforesaid, or shall wilfully

murder any Negro, Indian or Mallatto Slave within this Colony, and shall

thereof be convicted before three or more of Her Majesty’s Justices of

the Peace ... in Conjunction with five of the principal ffreeholders of

the County wherein such fact shall be committed, ... or before any Court

of Oyer and Terminer or General Gaole Delivery ... shall suffer the

pains of Death in such manner and with such circumstances as the

aggravation or enormity of their Crimes in the Judgment of the Justices

of those Courts aforesaid, or as in the judgment of Seven of the said

Justices and ffreeholders they shall merit and require.”[246]

By an act passed March 11, 1713–14, the General Assembly of the Province

of New Jersey made the above enactment the law of New Jersey, and added

the provision that “if any Negro, Indian or Mulatto Slave shall attempt

to ravish any white Woman or Maid ... any two Justices of the Peace are

hereby authorized to inflict such corporal Punishment, not extending to

Life or Limb, upon such Slave or Slaves so offending, as to the said

Justices shall seem meet.”

In 1721 Delaware passed “An Act for the Trial of Negroes” the provisions

of which were similar to those of the law of Pennsylvania enacted in

1705. Two justices of the peace, “particularly commissionated by the

Governor for that service within the respective counties thereof,” and

six of the most substantial freeholders of the neighborhood, were to

hear, examine, try and determine offenses committed by negro or mulatto

slaves, and it was provided that “if any Negro or Mulatto slave ...

shall attempt to commit a rape on a white woman or maid, they shall be

tried in manner aforesaid, and shall be punished by standing four hours

in the pillory at the Court-House on some court day, with both ears

nailed to the pillory, and before he be taken down from the same shall

have both his ears cut off close to his head.”[247]

By an act of June 8, 1751, it became the law of Maryland “that if any

slave or slaves shall at any time consult, advise, conspire or attempt

to raise any insurrection within this province, or to murder or poison

any person or persons whatsoever, or to commit a rape upon any white

woman, or to burn any house or houses, and be thereof convict by

confession or verdict ... shall suffer death, as in cases of felony,

without benefit of clergy.”[248]

In North Carolina, in 1758, the Assembly resolved to try “a plan which

would save the lives of the slaves and still act as a deterrent from

further crimes.” It was enacted “that except for rape or murder no male

slave who had committed a crime which was ordinarily punished by death

should suffer death for the first offence; but that on due conviction

such an offender should be castrated, the sheriff to be allowed for the

operation twenty shillings to be paid by the public. The court must fix

the value of the slave before the execution of this sentence, so that if

it should be the cause of his death there might be no dispute as to the

value to be paid his master. Three pounds were allowed by the public for

the curing of the slave’s wounds. For the second offence death might be

the penalty.”[249]

Foregoing further quotation and reference, the statement may be made

that in the colonial period, when laws were enacted for the trial and

punishment of offenses committed by negroes upon whites, rape was

usually one of the offenses for which capital punishment was provided,

and considerable discretion was generally allowed the judicial

authorities as to the manner in which the penalty should be inflicted,

the methods of hanging and burning alive both being employed.

In Massachusetts, in the year 1676, Basto, a negro slave, was sentenced

to be hanged for rape on the daughter of his master.[250]

In New Jersey, in the year 1731, “a negro slave called Harry, ravished

Annatye Pryers, but, apparently without exercising much force; sentenced

to receive forty-one lashes and to be branded on the right shoulder with

the letter ‘B.’”[251]

In Maryland, in 1739, “two slaves of Anne Arundel were executed, one for

burglary, the other for rape on a white woman; and the body of the

second, who had been a notorious offender, was hung in chains at some

distance from the gallows.”[252]

In Somerset County, New Jersey, in the year 1744, a young negro was

burnt alive for ravishing a white child about nine years old.[253]

The punishment of burning alive, which was sometimes applied to negroes

by the courts during the colonial period, was, however, usually

inflicted for other offenses than rape, such as murder or conspiracy to

murder (particularly by the use of poison), insurrection, and

arson.[254] But this punishment was never applied to negroes during the

colonial period except by judicial decree. Indeed, with the possible

exception of the slave insurrection in South Carolina in 1740,[255]

there are no instances recorded in colonial history where slaves were

publicly executed without trial.[256] Both by law and by public

sentiment slaves were recognized as chattels, and when they were

executed for crimes for the commission of which the owners could in no

way be held responsible, such owners were entitled to indemnification

and could enter suit at law for damages. It was customary for the courts

when passing sentence of death upon a slave to fix the valuation of the

slave, and this sum was then paid to the owner.

There is evidence to show that this crime directed against white women

continued to be perpetrated down to the time of the Civil War. The Salem

(Mass.) Gazette for October 5, 1813, contained this item: “At the late

term of the Supreme Judicial Court, holden at Northampton, Peter Pyner,

a black man, was convicted of a Rape, committed on the body of a _white

female_. The circumstances of the case were of a very distressing

nature, and the evidence of his guilt clear beyond a question. Sentence

of Death was pronounced by his Honor Chief Justice Parsons, in a solemn

and affecting manner.”

The Richmond Enquirer of December 14, 1813, gives an account of the

killing of a negro slave by a white woman in defense of her virtue.[257]

The following passages are taken from Niles’ Register in the years 1821

and 1822. “_A Monster._ A negro fellow, armed with a gun, seized upon a

respectable married lady, near Cartersville, Va., and attempted to

commit a rape on her. After a long contest, she succeeded in getting out

of his clutches, when he fired at her, but missed his aim. About an hour

afterwards, he in like manner attacked another married lady—not

succeeding, after a desperate struggle, he attempted to kill her with a

knife, but she wrested it from him, and getting released, ran away, when

he fired at her and lodged many shot in the back of her neck and

head—and yet, thus wounded, she escaped. The fellow declared his

intention of thus serving all the white women he could meet with. A

reward is offered for his apprehension.”[258]

“_A negro_, near Winchester, in Virginia, lately assailed two young

ladies, tied them to trees and compelled them to endure his loathsome

caresses; but was happily frustrated as to his ultimate design.”[259]

“_Trial of Ned._ A negro fellow so named, was tried and condemned at

Norfolk on the 19th inst. for the crime of committing a rape on the

person of a respectable white woman. He was found guilty, and the

decision of the court was received with a burst of applause.”[260]

“These remarks were chiefly induced by reflecting on the late conspiracy

at Charleston, and certain shocking enormities committed near Norfolk

and in North Carolina on the persons of white women, for which the

perpetrators were put to death, the relation of which is too disgusting

for our pages. Thirty-five have been hung and others remain for

execution at Charleston, and many were sentenced to transportation, &c.

yet it appears that the trials are not yet over. The plot seems to have

been well devised, its operation was extensive, and its intent

terrific.... When the plan was nearly ripe, the conspiracy was made

known, and a large number of the supposed principals were

arrested—twenty-two of whom were executed in one day!... The system of

slavery involves in itself a state of dreadful severity, for it is

sustained only by force—and about 60 years ago, thirteen blacks were

burnt alive in the then colony of New York for insurrectionary

movements.”[261]

The following item appeared in Niles’ Register for July 16, 1831 (40:

345): “A young lady, in Duplin County, North Carolina, about fourteen

years old, while proceeding to pay a visit to a neighbor between eleven

and twelve o’clock, noon, was violated and murdered close to the road,

after an apparently severe struggle, the ground at the place being much

trodden. The _Infernal_, after accomplishing his first purpose, cut her

throat! No clue had been discovered by which to trace the villain.”

Niles’ Register for August 24, 1833 (44: 423) contained the following:

“A free negro calling himself James Warfield, has been committed to the

jail of Harford county, Maryland, charged with the commission of a rape

upon a little girl aged nine years, the daughter of Mr. William Adams, a

respectable resident of that county.”

Such evidence shows that the crime of rape directed against white women

was not unknown prior to 1860.[262] As regards other crimes frequently

committed by negroes during the period of slavery, apparently it formed

a rather small proportion. It was far from being a crime that was more

frequently committed than any other, and yet it was one for the

perpetration of which the negroes showed a marked propensity whenever an

opportunity presented itself. Under the institution of slavery, however,

such opportunities were few. From the nature of slavery, the negro

seldom had an opportunity to ravish a white woman. The strong, burly

negro who was considered dangerous and likely to commit violence was

ordinarily put at hard labor in the fields and kept under strict

surveillance. Also, the discipline to which the negro was subjected when

a slave gave him a mastery over himself which it has been extremely

difficult for him to obtain by his own efforts. Habits of obedience and

industry, however inculcated, go very far toward restraining criminal

impulses. The good effects of the discipline of the slave régime were

particularly manifest during the progress of the Civil War, when the

Southern planters were obliged to leave their families with no other

protectors than the slaves, and these slaves discharged their trust with

uniform faithfulness and loyalty.

From the colonial period to the beginning of the anti-slavery agitation

in the early thirties, the law was regularly allowed to take its course

in dealing with negro criminals. Very little inclination was shown on

the part of the people to inflict punishment otherwise than as was then

provided by law. With regard to the crime of rape two instances may be

cited where summary measures were employed.

Niles’ Register for November 15, 1823 (25: 176) contained this item:

“_Negro Frank_ was lately tried at Frederick, Maryland, for having

defloured a young white female. That the fact had taken place, and as

stated, in the most brutal manner, was admitted; but Frank was acquitted

for the want of sufficient proof of his person. Some of the people,

however, thought he was guilty—and, after his release, he was beaten so

severely, as almost to deprive him of life.”

The following item appeared in Niles’ Register for March 10, 1832 (42:

22): “A negro fellow lately committed a horrid outrage on the body of a

girl twelve or thirteen years old, the daughter of a respectable

gentleman in Dinwiddie county, Virginia, who was almost killed by his

brutality. The ravisher was caught by the father, and instantly punished

with 150 lashes, of which it was believed that he would die—if not he

would be brought to trial.”

That there was an increasing disposition to resort to summary methods

for the punishment of negroes during the period 1830–1860 has been shown

in the evidence cited in Chapter IV; but so far as the infliction of

summary capital punishment was concerned, that did not become a serious

evil until the time of the Reconstruction of the Southern States.

Comparatively few negroes were lynched until after the close of the War.

It may be said, therefore, that while race prejudice and the crime of

rape against white women both existed as causes for the summary

treatment of negroes prior to the Civil War, both were held in check by

the institution of slavery.

It thus appears that throughout the period of slavery there was a

greater reliance on legal procedure for the treatment of negroes accused

of heinous offenses than has been manifest since that time; and not only

did the institution of slavery directly bring about this greater

reliance on legal procedure, by the suppression of the strongest

incentives toward adopting summary and illegal procedure, but it made

possible the enactment of special laws providing for a more expeditious

trial and execution of sentence in the case of negro offenders.

In the year 1740, South Carolina made the following provision for the

trial of slaves:

“And _whereas_, natural justice forbids that any person, of what

condition soever, should be condemned unheard, and the order of civil

government requires that for the due and equal administration of

justice, some convenient method and form of trial should be

established; _Be it therefore enacted_ by the authority aforesaid,

That all crimes and offences which shall be committed by slaves in

this Province, and for which capital punishment shall or lawfully may

be inflicted, shall be heard, examined, tried, adjudged and finally

determined by any two justices assigned to keep the peace, and any

number of freeholders not less than three or more than five, in the

county where the offences shall be committed, and who lives in the

parts adjacent, and can be most conveniently assembled; either of

which justices, on complaint made or information received of any such

offence committed by a slave, shall commit the offender to the safe

custody of the constable of the parish where such offence shall be

committed, and shall without delay, by warrant under his hand and

seal, call to his assistance and request any one of the nearest

justices of the peace to associate with him, and shall, by the same

warrant, summon such a number of the neighboring freeholders as

aforesaid, to assemble and meet together with the said justices, at a

certain day and place, not exceeding three days after the apprehending

of such slave or slaves[263]; and the justices and freeholders being

so assembled, shall cause the slave accused or charged, to be brought

before them, and shall hear the accusation which shall be brought

against such slave, and his or her defence, and shall proceed to the

examination of witnesses and other evidences, and finally to hear and

determine the matter brought before them, in the most summary and

expeditious manner; and in case the offender shall be convicted of any

crime for which by law the offender ought to suffer death, the said

justices shall give judgment, and award and cause execution of their

sentence to be done, by inflicting such manner of death and at such

time, as the said justices, by and with the consent of the

freeholders, shall direct, and which they shall judge will be most

effectual to deter others from offending in the like manner.

“_And be it further enacted_ by the authority aforesaid, That if any

crime or offence not capital, shall be committed by any slave, such

slave shall be proceeded against and tried for such offence in the

manner hereinbefore directed, by any one justice of the peace and any

two freeholders of the country where the offence shall be committed,

and can be most conveniently assembled; and the said justice and

freeholders shall be assembled, summoned and called together, and

shall proceed upon the trial of any slave who shall commit any offence

not capital, in like manner as is hereinbefore directed for trying of

causes capital. And in case any slave shall be convicted before them

of any offence not capital, the said one justice, by and with the

consent of the said freeholders, shall give judgment for the

inflicting any corporal punishment, not extending to the taking away

life or member, as he and they in their discretion shall think fit,

and shall award and cause execution to be done accordingly. _Provided

always_, that if the said one justice and two freeholders, upon

examination of any slave charged or accused before them for an offence

not capital, shall find the same to be a greater offence, and may

deserve death, they shall, with all convenient speed, summons and

request the assistance of another justice and one or more freeholders,

not exceeding three, which said justice and freeholders newly

assembled, shall join with the justice and freeholders first

assembled, and shall proceed in the trial, and unto final judgment and

execution, if the case shall so require, in manner as is hereinbefore

directed for the trial of capital offences.

“_And be it further enacted_ by the authority aforesaid, That two

justices and one freeholder, or one justice and two freeholders, of

the said two justices and three freeholders, shall make a quorum, and

the conviction or acquittal of any slave or slaves by such a quorum of

them shall be final in all capital cases; but on the trial of slaves

for offences not capital, it shall and may be sufficient if before

sentence or judgment shall be given for inflicting a corporal

punishment, not extending to life or member, that one justice and any

one of the freeholders shall agree that the slave accused is guilty of

the offence with which he shall be charged....

“And _whereas_, slaves may be harbored and encouraged to commit

offences, and concealed and received by free negroes, and such free

negroes may escape the punishment due to their crimes, for want of

sufficient and legal evidence against them; _Be it therefore further

enacted_ by the authority aforesaid, That the evidence of any free

Indian or slave, without oath, shall in like manner be allowed and

admitted in all cases against any free negroes, Indians (free Indians

in amity with this government, only excepted,) mulattoe or mustizoe;

and all crimes and offences committed by free negroes, Indians,

(except as before excepted,) mulattoes or mustizoes, shall be

proceeded in, heard, tried, adjudged and determined by the justices

and freeholders appointed by this Act for the trial of slaves, in like

manner, order and form, as is hereby directed and appointed for the

proceedings and trial of crimes and offences committed by slaves; any

law, statute, usage or custom to the contrary notwithstanding.”[264]

Few of the other colonies made such careful and comprehensive provision

for expediting the trial of slaves, whether accused of minor or of

capital offenses. A number of the other colonies, however, made similar

provision for the prompt trial of slaves and followed the same general

principles in their legislation affecting the punishment of offenses

committed by slaves.[265] Indeed, it was generally true throughout the

period of slavery that a special form of trial was provided in the case

of slaves accused of serious offenses, and that special penalties were

imposed upon such offenders. It is to be noted in the South Carolina Act

of 1740 that free negroes were given the same form of trial as the

slaves, and that the whole purport and spirit of the statute was merely

that justice might be done.

So long as the negro race was in bondage to the white race, then, not

only were the inciting causes of negro lynching largely held in check,

but such provisions were made for the trial and punishment of miscreant

slaves that resort to lynching was wholly without justification. Even

after the anti-slavery agitation had begun in the early thirties and

summary measures were occasionally taken against negro offenders,

justification was claimed on the ground of the incendiary publications

and utterances of the abolitionists rather than the specific crimes

committed by the blacks. The fact that during the period of slavery, in

the case of the raping of white women, as well as of other crimes, the

law was generally allowed to take its course, goes far toward refuting

the argument that lynching is necessary to repress crime among the

negroes in the South to-day.

History has shown it to be a fundamental mistake to assume that illegal

and summary procedure against a particular offense will deter from that

offense. As one writer has very forcibly said, if an argument based on

this assumption were put into plain language, it would read: “Let past

crime be met with present crime in order that future crime may be

prevented.”[266] All revengeful dealing with crime has increased crime

rather than lessened it. The only deterrent from crime that men have

found is the prompt and certain and solemn punishment by law, sustained

and supported by a confident, unyielding body of public opinion.[267]

The attempt to justify the lynching of negroes on the plea that lynching

for rape committed upon white women is necessary to repress that crime

is without support in any respect. Frederick Douglass lessened the force

of this plea very considerably when he pointed out that there have been

three distinct excuses offered for the persecution of negroes in the

United States. First, it was because of insurrections; then, it was the

fear of negro domination and supremacy; then, when neither of these was

any longer defensible as an excuse, the crime of assault upon white

women was put forward to justify their persecution.[268] The fact that

not more than thirty-four per cent of the negroes lynched in the last

twenty-two years have been lynched for that crime likewise vitiates such

a plea of justification. The facts as known indicate that lynching for

that crime, instead of having a repressive influence, has directly

stimulated its perpetration. Assaults on white women have occurred again

and again immediately following a lynching for such crime, and they have

so occurred in the same neighborhood where the lynching took place.[269]

It has been publicly stated that in one instance a negro who had

witnessed a lynching for this crime actually committed an assault on his

way home.[270]

The lynching of negroes in recent years can be justified on no other

ground than that the law as formulated and administered has proved

inadequate to deal with the situation—that there has been governmental

inefficiency. Not that guilty negroes frequently escape conviction in

the Southern courts, or that they fail to receive punishment to the full

extent of the law, but rather that the law and its administration seem

utterly unsuited to the function of dealing with negro criminals. A

judicial system adapted to a highly civilized and cultured race is not

equally applicable to a race of inferior civilization, and the failure

to realize this fact and act upon it, by making special provision for

the control of the negro population in the Southern States since slavery

was abolished, is a fundamental reason for the disrepute into which

legal procedure has fallen as regards negroes accused of offenses

against the whites.[271]

The mistakes of Reconstruction times are not yet blotted out in the

South. Abstractions still control where racial characteristics,

circumstances, and conditions should be the determining factors. Ever

since the Civil War the Southern people have been blindly groping after

some system other than slavery whereby two races of widely different

interests and attainments can live together in peace and harmony under a

republican form of government, and at the same time a vast number of

Northern people have been misinterpreting their motives and watching

every move with a critical and suspicious eye, ready at any moment to

shout across Mason and Dixon’s line that the negroes must have their

rights under the Constitution of the United States and the amendments

thereto.[272] Under such conditions it has been practically impossible

for the South to find a satisfactory solution of its problem, and herein

lies all the justification that can be found for the use of summary

measures in dealing with the increasing criminality which has manifested

itself in the younger generations of the colored race.

In the last analysis lynch-law in this country is without any

justification whatsoever. In a government founded on the idea that

ultimate power and authority shall rest with the people, and in which

sufficient facility has been given to the expression of the collective

will of the people so that the acts of the government, the formulation

of the law, and the administration of justice, ought adequately to

represent this collective will, there is no tenable ground on which to

vindicate the practice of punishing criminals other than by the

regularly constituted courts and the officers of the law. But if

circumstances and conditions be taken into consideration and the history

of the practice carefully noted, it is possible to see how justification

has come about through the different points of view that have been

taken. From the standpoint of the frontiersmen and pioneers summary

procedure in certain cases was wholly justifiable. From the standpoint

of the Southerners during the period of Reconstruction summary procedure

was likewise wholly justifiable. To men living in a community where a

particularly brutal and barbarous crime is committed upon a white person

by a negro, the prompt lynching of the negro, even with some torture and

cruelty, seems entirely defensible. Thus, while we cannot justify the

practice of lynching on any ground whatever, yet the fact remains that

it has been repeatedly justified in one way or another.

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