“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.