The old walnut tree on which lynch-law is said to have been first administered was still standing, in 1900,[[46]] on the lawn of the Lynch homestead, two miles from the village of Lynch Station on the Southern Railway. A part of it was dead but the rest was still vigorous and bore its annual crop of nuts. The death penalty, however, was never inflicted under its shadow. Some say that the Quaker proclivities of “Judge Lynch”[[47]] prevented him from passing sentence of death; others say that it was due to his native sense of humanity. Mr. Page presents some evidence showing that “both custom and sentiment were violently opposed to visiting capital punishment upon the detected Tory conspirators.”[[48]]
In the determination of origins it is frequently impossible to obtain direct evidence bearing on the point in question. In this case there is direct evidence for connecting the name of Charles Lynch with the origin of “lynch-law.”[[49]] In 1817 Judge Spencer Roane wrote in a letter to William Wirt: “In the year 1792 there were many suits on the south side of James River, for inflicting Lynch’s law.” Mr. Wirt adds, in a note explanatory of the words “Lynch’s law,” “Thirty-nine lashes, inflicted without trial or law, on mere suspicion of guilt, which could not be regularly proven. This lawless practice, which, sometimes by the order of a magistrate, sometimes without, prevailed extensively in the upper counties on James River, took its name from the gentleman who set the first example of it.”[[50]] Though Wirt does not mention Charles Lynch by name, he does say that the lawless practice “prevailed extensively in the upper counties on James River,” and Charles Lynch was for years closely identified with the interests of Campbell[[51]] and Bedford counties—two of the upper counties on the James River.
Henry Howe, in his “Historical Collections of Virginia,” in a section entitled “Lynch Law,” says: “At that time (the time of the Revolution), this country (Campbell County and vicinity) was very thinly settled, and infested by a lawless band of tories and desperadoes. The necessity of the case involved desperate measures, and Col. Lynch, then a leading whig, apprehended and had them punished, without any superfluous ceremony. Hence the origin of the term ‘Lynch Law.’ This practice of Lynching continued years after the war, and was applied to many cases of mere suspicion of guilt, which could not be regularly proven.”[[52]]
In a book written a few years later than the above, Howe has the following to say on the same subject: “The Lynch Law, as it is termed, originated in Virginia at the time of the American Revolution, and was first adopted by Colonel Lynch against a lawless band of tories and desperadoes, who infested the country at the base of the Blue Ridge. This plan was afterwards followed in the west, and its operation was salutary in ridding the country of miscreants whom the law was not strong enough to punish. The tribunal of Squire Birch, as the person who personated the judge was called, was established under a tree in the woods; the culprit being usually found guilty was tied to a tree and lashed without mercy, and then expelled from the country. In general, ‘the regulators’ only exercised this law upon the most base and vile characters.”[[53]]
This account given by Howe cannot be considered as wholly independent of the influence of Wirt. In his “Historical Collections of Virginia,” Howe quotes from Wirt’s book in substantiation of his statement that the “practice of Lynching continued years after the war.” On the other hand, however, the fact that he repeated his assertions in regard to the origin of “Lynch Law” in emphatic terms in his later book, and therewith described the operation of “Lynch Law” in the west, is strong evidence that he had other sources of information than Wirt’s book on the matter.[[54]]
An account, entirely independent of any influence from either Wirt or Howe, is found in “Colonel William Martin’s Narrative of Frontier Life,” prepared about 1842 for Dr. Lyman C. Draper and now in the Draper MS. Collections in the Wisconsin State Historical Society Library. It is as follows:
“In those times there were a great many bad men settled along the frontiers who by their thefts annoyed the country greatly. Insomuch that the people entered into combinations to suppress them and formed companies called regulators. They formed in military style, with officers, etc.
“They also organized a court and appointed some three or four of their aged, discreet men judges to try criminal causes, award punishment, etc. The company would bring up suspected fellows and the court would try them. But they seldom extended punishment beyond whipping and driving them from the country, sometimes making them pay for property stolen, when they had the means.
“This method of breaking up combinations of rogues was first set on foot by Col. Charles Lynch, of Bedford county, Va., where I was raised. He and my father were acquainted. (The same man for whom Lynchburg was named.) This plan was started some seventy or eighty years ago.[[55]]
“The measure seemed to be called for from the situation of the country at the time. And it has been practiced more or less in the settling of new countries from that time until within a few years past, since the laws operate with more efficiency. The authorities generally connived at it from the necessity of the case. And perhaps nowhere has it been more common than in Tennessee. Lynch at first punished with thirty-nine stripes, taking, as I suppose, Moses for his model. And this was for a great while called Lynch’s law, meaning all unlawful whipping. Any of the old men now in the South and West can tell the meaning of Lynch’s law.