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]]