“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.