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.