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.