Chapter III: Early Lynch-Law (2)

In “Letters from Illinois,” the second edition of which was published in London in 1818, Morris Birkbeck writes:

“There is nothing that I anticipate with so much satisfaction and
security as the rapid development of society in our new country. Its
elements are rude certainly, and heterogeneous. The first settlers,
unprotected, and unassisted amid dangers and difficulties, have been
accustomed from early youth to rely on their own powers; and they
surrender with reluctance, and only by halves, their right of defence
against every aggression, even to the laws which themselves have
constituted.

“They have been anxiously studious of mildness in the forming of these
laws, and when, in practice, they seem inefficient, they too
frequently proceed with Indian perseverance to acts of vengeance,
inconsistent with the duty of forbearance essential to social man.
Hence deeds of savage and even ferocious violence are too common to be
viewed with the abhorrence due to them.

“This disposition is evinced continually, and acted on without any
feeling of private or personal animosity.

“If a man, whom the public voice has proclaimed a thief or a swindler,
escapes from justice for want of a legal proof of his guilt, though
the law and a jury of his fellow citizens have acquitted him, ten to
one but he is met with before he can quit the neighborhood, and, tied
up to a sapling, receives a scourging that marks him for the rest of
his life.

“In Kentucky, whose institutions have acquired greater maturity, such
events _have_ taken place some years ago; but now they would scarcely
be tolerated, and they will soon be matter of history only, in Indiana
and Illinois.

“No crime but murder ‘of the first degree’ is punished with death, in
any of the western states, nor, I believe, in the Union. In Kentucky
there is a general penitentiary, for the punishment of other offences
by imprisonment and labour.”[127]

William Newnham Blane, who traveled through the United States and Canada in the years 1822 and 1823, described the lynch-law procedure of that time as follows:

“After leaving Carlyle, I took the Shawnee town road, that branches
off to the S. E., and passed the Walnut Hills, and Moore’s Prairie.
These two places had a year or two before been infested by a notorious
gang of robbers and forgers, who had fixed themselves in these wild
parts, in order to avoid justice. As the country became more settled,
these desperadoes became more and more troublesome. The inhabitants
therefore took that method of getting rid of them, that had been
adopted not many years ago in Hopkinson and Henderson counties
Kentucky, and which is absolutely necessary in new and thinly settled
districts, where it is almost impossible to punish a criminal
according to legal forms.

“On such occasions therefore, all the quiet and industrious men of a
district form themselves into companies, under the name of
‘Regulators.’ They appoint officers, put themselves under their
orders, and bind themselves to assist and stand by each other. The
first step they then take, is to send notice to any notorious
vagabonds, desiring them to quit the State in a certain number of
days, under the penalty of receiving a domiciliary visit. Should the
person who receives the notice refuse to comply, they suddenly
assemble, and when unexpected, go, in the night time, to the rogue’s
house, take him out, tie him to a tree, and give him a severe
whipping, every one of the party striking him a certain number of
times.

“This discipline is generally sufficient to drive off the culprit; but
should he continue obstinate, and refuse to avail himself of another
warning, the Regulators pay him a second visit, inflict a still
severer whipping, with the addition probably of cutting off both his
ears. No culprit has ever been known to remain after a second visit.
For instance, an old man, the father of a family, all of whom he
educated as robbers, fixed himself at Moore’s Prairie, and committed
numerous thefts, &c. &c. He was hardy enough to remain after the first
visit, when both he and his sons received a whipping. At the second
visit the Regulators punished him very severely, and cut off his ears.
This drove him off, together with his whole gang; and travellers can
now pass in perfect safety, where it was once dangerous to travel
alone.

“There is also a company of Regulators near Vincennes, who have broken
up a notorious gang of coiners and thieves who had fixed themselves
near that place. These rascals, before they were driven off, had
parties settled at different distances in the woods, and thus held
communication and passed horses and stolen goods from one to another,
from the Ohio to Lake Erie, and from thence into Canada or the New
England States. Thus it was next to impossible to detect the robbers,
or to recover the stolen property.

“While I was staying at the house of a Mr. Mulligan in Illinois,
thirty miles from St. Louis, one of the men, who had belonged to the
gang near Vincennes, was taken up on the charge of passing counterfeit
money....

“This practice of _Regulating_ seems very strange to an European. I
have talked with some of the chief men of the Regulators, who all
lamented the necessity of such a system. They very sensibly remarked,
that when the country became more thickly settled, there would no
longer be any necessity for such proceedings, and that they should all
be delighted at being able to obtain justice in a more formal manner.
I forgot to mention, that the rascals punished, have sometimes
prosecuted the Regulators, for an assault. The juries however, knowing
the bad characters of the prosecutors, would give but trifling
damages, which divided among so many, amounted to next to nothing for
each individual.”[128]

In a book entitled “Letters from the West,” which was published in London in 1828, Judge James Hall wrote on the subject of lynch-law as follows:

“Among the early settlers there was a way of trying causes, which may
perhaps be new to you. No commentator has taken any notice of _Linch’s
Law_, which was once the _lex loci_ of the frontiers. Its operation
was as follows: When a horse thief, a counterfeiter, or any other
desperate vagabond, infested a neighborhood, evading justice by
cunning, or by a strong arm, or by the number of his confederates, the
citizens formed themselves into a ‘_regulating company_,’ a kind of
holy brotherhood, whose duty was to purge the community of its unruly
members. Mounted, armed, and commanded by a leader, they proceeded to
arrest such notorious offenders as were deemed fit subjects of
exemplary justice; their operations were generally carried on in the
night. Squire Birch, who was personated by one of the party,
established his tribunal under a tree in the woods, and the culprit
was brought before him, tried, and generally convicted; he was then
tied to a tree, lashed without mercy, and ordered to leave the country
within a given time, under pain of a second visitation. It seldom
happened, that more than one or two were thus punished; their
confederates took the hint and fled, or were admonished to quit the
neighborhood. Neither the justice nor the policy of this practice can
be defended; but it was often resorted to from necessity, and its
operation was salutary, in ridding the country of miscreants whom the
law was not strong enough to punish. It was liable to abuse, and was
sometimes abused; but in general, it was conducted with moderation,
and only exerted upon the basest and most lawless men. Sometimes the
sufferers resorted to courts of justice for remuneration, and there
have been instances of heavy damages being recovered of the
_regulators_. Whenever a county became strong enough to enforce the
laws, these high-handed doings ceased to be tolerated.”[129]

In the above extracts we have a fair description of the operation of lynch-law as it was carried westward by the emigrants from Virginia and the neighboring States. The weakness and inadequacy of the civil regulations, and the presence of such criminals as the horse-thief, the counterfeiter, the robber, and the desperado, who find the frontier both a retreat from the consequences of past crime and a new theater for the perpetration of crime, gave a constant justification for recourse to lynch-law.

The usual manner of proceeding was for the settlers to consult together and in a more or less formal way to establish “the institution of Regulators.” Sometimes the Regulators were small bodies of men chosen by the people to look after the interests of the community—in effect, they were committees of safety. At other times, the Regulators were bodies of men who voluntarily assumed the duty of policing a district. The duties of such companies, whether known as Regulators or as Rangers or by some other name, were to ferret out and punish criminals, to drive out “suspicious characters,” and to exercise a general supervision over the interests of the settlements in which they lived. Their statute-book was the “code of his honor, Judge Lynch”[130]; their order of trial was similar to that of a “drum-head court-martial”; the principles of their punishment were certainty, rapidity, and inexorability. They were in themselves judges, juries, witnesses, and executioners.

These bodies of men bound themselves by a regular compact, to the people and to each other, to rid the community of all thieves, robbers, plunderers, and villains of every description. Such compacts were usually verbal but they were sometimes in writing.[131] The compact entered into by the Regulators of North Carolina has already been cited. If the agreement of 1780 in Virginia, to which the editor of the Southern Literary Messenger gave his indorsement, be accepted as genuine, we have a record of another such compact. There is recorded, also, a compact entered into by a company of Regulators in Illinois in 1820. It reads as follows:

“_Know all men by these presents_:

“That we (_here follow twelve names_), citizens of —— settlement, in
the state of Illinois, have this day, _jointly and severally_, bound
themselves together as a company of Rangers and Regulators, to protect
this settlement against the crimes and misdemeanors of, all and
singular, every person or persons whomsoever, and especially against
_all horse-thieves, and renegades, and robbers_. And we do by these
presents, hereby bind ourselves, jointly and severally as aforesaid,
unto each other, and to the fellow-citizens of this settlement, to
punish, according to the code of his honor, Judge Lynch, all
violations of the law, _against the peace and dignity of the said
people of_ —— settlement; and to discover and bring to speedy
punishment, _all illegal combinations_—to rid the country of such as
are dangerous to the welfare of this settlement—to preserve the peace,
and _generally to vindicate the law_, within the settlement aforesaid.
All of which purposes we are to accomplish as peaceably as possible:
_but we are to accomplish them one way or another_.

“In testimony whereof, we have hereunto set our hands and affixed our
seals, this twelfth day of October, _Anno Domini_, eighteen hundred
and twenty.

(Signed by twelve men.)

“Acknowledged and subscribed in the presence of

“C——T. H——n,
“J——P. D——n,”

and five others, who seem to have been a portion of “the fellow-citizens of this settlement,” referred to in the document.[132]

The companies of Regulators were generally organized only temporarily to meet some emergency in particular communities. The one striking exception is the Regulation movement in the Carolinas. The circumstances surrounding that movement, however, were not paralleled elsewhere. The duration and strength of the organization there, was undoubtedly due to the prominence of the political factor in its existence. Leaving out of consideration the Carolina Regulation and the summary practices which were incident to the Revolutionary War, there existed almost exclusively down to 1830 what may be called the frontier type of lynch-law pure and simple. This form of lynch-law procedure has always been justified on the ground of necessity, and has been condemned only because of its liability to abuse. As one writer has said, referring to the Regulators: “Their acts may sometimes have been high-handed and unjustifiable, but on the whole—and it is only in such a view that social institutions are to be estimated—they were the preservers of the communities for whom they acted. In time, it is true, they degenerated, and sometimes the corps fell into the hands of the very men they were organized to punish.

“Every social organization is liable to misdirection, and this, among others, has been perverted to the furtherance of selfish and unprincipled purposes; for, like prejudices and habits of thought, organized institutions frequently survive the necessities which call them into existence. Abuses grow up under all systems; and, perhaps, the worst abuse of all, is a measure or expedient, good though temporary, retained after the passing away of the time for which it was adopted.”[133]

If it be said that “all law emanates from the people, and is, in fact, whether written or not, nothing more or less than certain rules of action by which a people agree to be governed,” then the frontier type of lynch-law is scarcely more than one step removed from genuine law. For instance, in the year 1834, a large number of persons, citizens of the United States, but of no particular state or territory, and beyond the pale of the regular operations of the law, were collected at a place called _Dubuque’s mines_, west of the Mississippi, and north of the State of Missouri. On May 29 of that year, Patrick O’Conner, who had the reputation of being a desperate character, shot and killed George O’Keefe. O’Conner “was arrested by mutual consent of all parties, and, on the next day, was duly tried, by a jury of twelve citizens, taken from the multitude. Privilege was given to the prisoner to object to all such as he chose not to be tried by, and he made no objections to the mode of trial. He was allowed the privilege of choosing a friend to counsel with him, and assist in conducting the trial.”

After hearing the testimony of the witnesses that were called, the jury retired, and “after a session of about two hours,” returned the following verdict: “We, the jury selected to try Patrick O’Conner, for the murder of George O’Keefe, on the 29th inst. after examining the witnesses on oath, and attentively hearing and considering the testimony against the prisoner, do unanimously agree that the said O’Conner is guilty of murder in the highest degree, and are of opinion that the said O’Conner has done an act which, in a land of laws, would forfeit his life. And inasmuch as the security of the lives of the good citizens of this country requires that an example should be made, to preserve order and convince evil disposed persons that this is not a place where the lives of men may be taken with impunity—we are of opinion that the said O’Conner should be carefully secured until the 20th day of June, and that, at the hour of 12 o’clock, of said day, the said Patrick O’Conner be conducted to the place of execution, and there be hung by the neck until he is dead.” This verdict was signed by the twelve members of the jury.

Pursuant to a public notice, a meeting of the citizens was held on June 17 to make arrangements for the execution of O’Conner on June 20. L. Wheeler was requested to take command of a company of volunteers to act as a guard. A committee of three was appointed to make the necessary arrangements for the execution and burial of O’Conner. Henry Adams was requested to act as sheriff on the day of the execution. A committee of three was appointed to collect sums to defray the necessary expense “for the keeping, executing, burial, &c., of said O’Conner.” It was voted that the sheriff be allowed the sum of twenty-five dollars for the keeping and execution of said O’Conner; and that if there were anything over and above that amount, after all necessary expenses were paid, the same should go to the executioner.

“At 12 o’clock, on the day of the execution, the prisoner was taken from his place of confinement, under a guard of a company of volunteers, commanded by L. Wheeler, to the place of execution, where had assembled about 1,500 citizens. He was placed on a cart, the rope was made fast to the gallows, when the cart was driven away, leaving the prisoner suspended between the heavens and the earth.

“The whole proceedings were carried on with the utmost regularity and good order. By mutual consent of all, every coffee house was kept closed, and not a drop of spirits was sold until after the execution.”[134]

At the time of this affair no judicial or civil regulations were yet established in that region. Under these circumstances, then, was Patrick O’Conner legally executed or was he executed by lynch-law? Doubtless most men will agree that he was, to all intents and purposes, legally executed, and yet many instances of the operation of lynch-law on the frontier were scarcely less justifiable, though the trial and infliction of punishment may have been far more summary.

In general, the punishments administered under lynch-law previous to 1830 were not severe, usually consisting of a whipping, or some other form of corporal punishment, and banishment after a specified time. Niles’ Register for July 17, 1824 (26: 326) contains the following: “Kentucky.—Several murders have lately been committed in this state by persons who call themselves ‘regulators’—but effectual measures have been taken to arrest and punish them.” This case was evidently an abuse of lynch-law; a band of desperadoes, presumably, adopted the name of “regulators” as a cloak for their misdeeds, and thus sought immunity from punishment. Capital punishment was very rarely inflicted by the substantial and respectable settlers who sometimes found it necessary to use lynch-law methods at this early period.

It thus appears that the summary and extra-legal methods of punishment adopted during colonial times, and the summary practices of the time of the Revolution, were carried by the emigrants from the original colonies as they pushed the line of the frontier further and further to the westward. Frequent occasion was found on the frontier for the use of such methods and practices to curb the activity of the lawless and the vicious. When the legislature of Virginia authoritatively declared that circumstances may arise under which measures, though not strictly warranted by law, are justifiable from the imminence of the danger, it gave expression to a principle which found ready acceptance among the early settlers exposed to the dangers and vicissitudes of frontier life. Though the statement of the principle by the legislature of Virginia may not have been known, and probably was not known, to very many of those who took an active part in the subsequent history of lynch-law, nevertheless the principle itself was a matter of common knowledge, for it was in the air, as it were, and it was repeatedly embodied in action. In reality, the subsequent history of lynch-law is but the working out of this principle under varying conditions.