The Roots of Rough Justice

Origins of American Lynching

Michael J. Pfeifer

• Publisher: University of Illinois Press
• Year: 2011
• Print ISBN:
  9780252080081
  9780252036132
• eBook ISBN:
  9780252093098
• Topic: History
• Subtopic: North American History
• Index: History

In this deeply researched prequel to his 2006 study Rough Justice: Lynching and American Society, 1874–1947, Michael J. Pfeifer analyzes the foundations of lynching in American social history. Scrutinizing the vigilante movements and lynching violence that occurred in the middle decades of the nineteenth century on the Southern, Midwestern, and far Western frontiers, The Roots of Rough Justice: Origins of American Lynching offers new insights into collective violence in the pre-Civil War era.

 

Pfeifer examines the antecedents of American lynching in an early modern Anglo-European folk and legal heritage. He addresses the transformation of ideas and practices of social ordering, law, and collective violence in the American colonies, the early American Republic, and especially the decades before and immediately after the American Civil War. His trenchant and concise analysis anchors the first book to consider the crucial emergence of the practice of lynching of slaves in antebellum America. Pfeifer also leads the way in analyzing the history of American lynching in a global context, from the early modern British Atlantic to the legal status of collective violence in contemporary Latin America and sub-Saharan Africa.

 

Seamlessly melding source material with apt historical examples, The Roots of Rough Justice tackles the emergence of not only the rhetoric surrounding lynching, but its practice and ideology. Arguing that the origins of lynching cannot be restricted to any particular region, Pfeifer shows how the national and transatlantic context is essential for understanding how whites used mob violence to enforce the racial and class hierarchies across the United States.

1. Collective Violence in the British Atlantic

The legal and cultural antecedents of American lynching were carried across the Atlantic by migrants from the British Isles to colonial North America. Collective violence was a familiar aspect of the early modern Anglo-American legal landscape. Group violence in the British Atlantic was usually nonlethal in intention and consequence but it occasionally shaded, particularly in the seventeenth century in the context of political turmoil in England and unsettled social and political conditions in the American colonies, into rebellions and riots that took multiple lives. In the years before and after the Declaration of Independence in 1776, Americans transformed older British notions and practices of crowd action and imbued them with new meanings amid the egalitarian and reformist implications of the Revolution and the early American Republic.

Though early modern crowd violence sometimes took on antiauthoritarian implications, seventeenth- and eighteenth-century crowd actions were rooted in a hierarchical conception of society as a corporate body linking gentry and plebeians in an English commitment to and participation in a “rule of law” that reputedly distinguished Englishmen from most Europeans. Such an understanding of an encompassing, participatory rule of law linked members of English and colonial American communities in institutions of criminal justice that included attendance at public punishments such as the pillory and the scaffold. Public spectacle executions meted out a “bloody code” intended to convey the consequences of serious crimes and the majesty of legal authority in a monarchical, hierarchical society. Around the British Atlantic, grass roots criminal justice was also manifested in the “hue and cry” communal apprehension of criminals and, increasingly in the eighteenth century, the posse comitatus, which gave the sheriff the authority to call upon all physically able men to assist in capturing felons. Elites accepted, sometimes grudgingly, that under such a corporatist constitutional arrangement, commoners might occasionally turn to collective action to seek restoration of what they perceived as their customary rights. Crowd actions often took the form of rituals of misrule, performances that inverted social rank or gender in holiday processions or in charivari that temporarily overturned social arrangements in order to reaffirm conventional political or gender arrangements such as gentry domination of the polity or benevolent patriarchal control of the household (in correction of the aberrant behavior of cuckolds, wife-beaters, overly headstrong wives, or newlyweds of disparate ages).¹

There is little evidence that informal group murder, that is, what would later become known as lynching, occurred with any frequency in the early modern British Isles or Colonial America, and certainly not sufficient evidence to argue that the practice ever became an aspect of a ubiquitous Anglo-American tradition of crowd violence, which seldom culminated in the deaths of the targets of crowd action. However, summary collective executions did occasionally occur in the early modern British Atlantic, typically in the heat of deep popular passions over situations characterized by perceptions of legal, social, or political injustice. In June 1628, a crowd of London apprentices murdered John Lambe “with stones and cudgels and other weapons.” Lambe, who was probably in his early eighties, worked as a “magical healer and counselor” and had escaped capital convictions for witchcraft and rape through a reprieve and a royal pardon. Significantly, Lambe was also an associate of the Duke of Buckingham, George Villiers, a favorite of Charles I who had become the focus of opposition in Parliament and would soon be assassinated. The crowd murder of Lambe can be read as an act of collective justice that sought to punish a convicted witch and rapist in light of the failure of the legal authorities to do so, but also as a “subversive” act of popular politics in an escalating conflict between Charles I and Parliament over the destiny of the English nation. Furious over the act of political disorder, the king ordered the City of London to punish the rioters and those that had failed to prevent their actions. The city jailed a number of law officers for failing in their duty, but no individuals were arrested for their participation in the crowd. The king responded by suing the city, and the court levied a £1,000 fine.²

A collective murder similarly inspired by legal and political anxieties occurred in Edinburgh in September 1736. Captain John Porteous had ordered militia to fire on a crowd that rioted at the gibbet after the hanging of a smuggler, Andrew Wilson. Six died among the Scottish rioters infuriated by the Crown’s harsh enforcement of the excise laws. A jury, possibly influenced by a large crowd that gathered outside the courtroom, convicted Captain Porteous of murder, and he was sentenced to death. Angered at news of a reprieve of Porteous’s execution, and fearing that he might ultimately escape hanging through an appeal of his conviction and the intervention of the prime minister, Robert Walpole, an armed mob of several thousand pulled Porteous from the city’s jail, the Tolbooth, and hanged him from an improvised gallows. Dismayed by the failure of local authorities to intervene to prevent the collective homicide, Parliament responded to the crowd execution by dismissing the provost of Edinburgh and fining the city £2,000.³

Another crowd execution occurred on the northwestern periphery of the British Atlantic, in Marblehead, Massachusetts, in July 1677. After Indians commandeered a number of settler fishing boats, a colonist community distraught over devastating losses to Natives in King Philip’s War reacted with furor. When some of the fishermen that were feared lost instead arrived at Marblehead with two Natives they had overpowered, intending to ransom them for goods that had been captured by Indians, local settler women refused to consent to a transfer of the Natives to local authorities. Asserting that legal processes could not avail the community’s psychic wounds in the way that murderous retribution would, the Marblehead women seized the two Natives and killed them.⁴ One of the fishermen, Robert Roules, testified in a deposition.

Being on shore, the whole town flocked about them, begining at first to insult them, and soon after, the women surrounded them, drove us by force from them, (we escaping at no little peril,) and laid violent hands upon the captives, some stoning us in the meantime, because we would protect them, others seizing them by the hair, got full possession of them, nor was there any way left by which we could rescue them. Then with stones, billets of wood, and what else they might, they made an end of these Indians. We were kept at such distance that we could not see them till they were dead, and then we found them with their heads off and gone, and their flesh in a manner pulled from their bones. And such was the tumultation these women made, that for my life I could not tell who these women were, or the names of any of them. They cried out and said, if the Indians had been carried to Boston, that would have been the end of it, and they would have been set at liberty; but said they, if there had been forty of the best Indians in the country here, they would have killed them all, though they should be hanged for it. They suffered neither constable nor mandrake, nor any other person to come near them, until they had finished their bloody purpose.⁵

Although these incidents resembled later lynchings in significant ways, there is little to suggest that early modern Anglo-American group killings constituted a well-accepted or widespread practice in any meaningful sense.⁶ In the seventeenth- and eighteenth-century English and Scottish crowd executions, the Crown responded vigorously to send a message that crowd violence that crossed a threshold into murderous public disorder would not be tolerated. In the Marblehead killings, observers stressed the anomalous quality of the violence. Yet, looking beyond the gender composition of the crowd, the collective killing of Natives by settler women was in another sense entirely consistent with an emerging pattern in settler-Native relations in Colonial British America, one that would persist for another two centuries. Given the significant cultural differences and Anglo-American assumption of superiority, conflict between settlers and Natives could easily escalate into individual and collective lethal retribution, and the complications of laws and legal authority would prove more of an inspiration than an obstacle to the perpetrators of settler-Indian violence. Indeed, the London, Edinburgh, and Marblehead cases each revealed, through exceptional moments of crowd violence, tensions between legal authority and popular views of the law in the early modern British Atlantic, stresses that would expand markedly in the United States in the decades after independence.

Participants in the American Revolution drew upon and reworked older Anglo-American ideas and practices of crowd violence. Consistent with patterns of crowd action earlier in the eighteenth century, most revolutionary popular violence was nonlethal, directed against property, and based upon the customary Anglo-American notion that the people might use violence to protest unjust government. However, from 1765 through the early 1780s, a period during which revolutionary sentiment developed, independence was declared, and a vicious civil war between Patriots and Tories erupted in the backcountry, novel forms of crowd violence directed against persons emerged. Tarring-and-feathering, a melding of older practices of public humiliation of aberrant individuals through “ridings,” judicial public punishments, and the punitive folkways of sailors, became a ubiquitous punishment for customs informers and others that offended Patriot sensibilities. In the Blue Ridge Mountains of Virginia, summary punishment of Tories, typically through the infliction of thirty-nine lashes, would be commemorated by some sources in subsequent decades as giving birth to a practice of summary, collective, and nonlethal violence called “lynch-law.” Yet lynch-law dovetailed with the American rhetoric and practice of “regulation,” predating the Revolution by several decades, in which neighborhood groups informally punished deviants and social enemies and sought to impose their vision of order in backcountry regions, most notably in the Carolinas in the late 1760s and early 1770s. Consistent with traditions of Anglo-American crowd violence, lynch-law and regulation, which would be carried south and west as the backcountry expanded in the decades that followed, usually entailed violence that sought to humiliate and wound, not kill, victims.⁷

Laying the groundwork for the emergence of a lethal practice of American lynching, the egalitarian transformation of American politics and society from the Revolution through the Jacksonian era illuminated a division between reformers who sought to render criminal justice more rational and humane versus popular opinion that continued to insist on harsh retribution for serious crimes. As a sanguinary but highly discretionary administration of criminal justice tied to well-accepted hierarchical, corporatist relationships gave way to a criminal justice system that emphasized rationality, regularity, and the reform of the criminal, an increasingly democratic polity asserted not merely its customary rights within a hierarchical framework, but now its very right to define the nature of criminal justice and its administration, just as their forefathers had waged a revolution against British tyranny and had written a constitution and as they themselves vigorously contested local political offices and avidly participated in state and national politics. Accentuating the cultural division over the transformation of criminal justice, the years of the Revolution and the early Republic had bequeathed a contradictory constitutional legacy. Some argued that the founding documents of the American nation had settled the key questions regarding the relationship between the people, governmental institutions, and laws, and that under a republican form of government, the duty of citizens was now to obey laws and to seek any necessary changes through the political process. But other Americans argued, invoking the tradition of the Anglo-American crowd and the substantial precedents of popular violence in the Revolution, that communities might legitimately disregard laws and usurp the functions of criminal justice when government could not or would not act to protect the interests of citizens.⁸ This cultural conflict over the contours of law and criminal justice would give birth to American lynching in the social flux of the developing regions south and west of the Alleghenies in the early-to-mid–nineteenth century.

2. Vigilantes, Criminal Justice, and Antebellum Cultural Conflict

On January 27, 1838, in his Address to the Young Men’s Lyceum of Springfield, Illinois, the young lawyer Abraham Lincoln deplored the vigilante execution of gamblers and alleged slave insurrectionists in Mississippi in 1835 and the mob execution of an African American in St. Louis in 1836, asserting that the passions of mob law endangered American self-government.¹ Lincoln rejected the arguments of apologists for vigilantism who insisted that the inadequacy of laws and ineffectiveness of legal institutions in thwarting dangerous criminality justified vigilante violence. Although his specific examples of mob violence came from the Mississippi River Valley, Lincoln argued that lawless mobs that substituted their judgments for those of legally constituted courts had become a national problem, “from New England to Louisiana. … they spring up among the pleasure hunting masters of southern slaves, and the order loving citizens of the land of steady habits.”² Lincoln believed that rampant mob violence unleashed social havoc by eroding the “walls erected for the defence of the persons and property of individuals.”³ In Lincoln’s view, only “a reverence for the constitution and laws” that eschewed political passions and extremism and safeguarded individual rights could ensure the perpetuation of republican political institutions inherited from the American Revolution.⁴

As Lincoln understood, antebellum vigilantes and their opponents participated in an emerging discourse over the nature of law, criminal justice, the state, and individual rights. Drawing on an expansive and elastic notion of popular constitutionalism,⁵ an understanding of the right of the people to make and supervise laws that stemmed from the Anglo-American legal tradition and the American Revolution, vigilantes asserted the prerogative of communities to usurp legal functions and to deploy violence to protect their neighborhoods from lawlessness. By contrast, those who criticized their actions argued, as had Lincoln, that only the observation of laws and the use of the political process to correct problems in criminal justice could safeguard social order and protect individuals from the dangers of “mob law.”⁶ As they disputed the boundaries of law and the proper response to criminality, vigilantes and those who criticized them pondered the legacy of the American Revolution and the challenges of republican government in the antebellum United States.

Antebellum advocates of vigilantism in the Midwest, South, and West drew on Anglo-American and American revolutionary traditions of community violence that suggested that citizens might reclaim the functions of government when legal institutions could not provide sufficient protections to persons or their property.⁷ Trans-Appalachian vigilantes’ highly instrumentalist practice pulled into definition lines of social status and community, the now-respectable against the now-unrespectable versus alleged murderers and transgressors of property, such as slave insurrectionists, horse thieves, counterfeiters, and claims-jumpers.⁸ In their temporary, republican usurpation of the prerogatives of legal authority, vigilantes invoked popular sovereignty to reject a style and philosophy of criminal justice that had crystallized in the Northeast from the late eighteenth through the mid–nineteenth centuries. Legal changes emanating from the Northeast included a newly ascendant respect for the rights of the defendant (enshrined in the Fifth Amendment to the U.S. Constitution, holding that no citizen would be deprived of due process protections), a burgeoning interest in the potential for the reform of the criminal, and a fear of the effects of harsh punishments on the masses that enthusiastically viewed them.

The reform of criminal justice in line with humanitarian considerations and a growing emphasis on legal rights and fairness accompanied capitalist transformation and middle class and working class formation in the Northeast from the American Revolution through the first half the of nineteenth century.⁹ The adversary system, in which lawyers dominated trials and vigorously contested criminal procedure, was also a recent development in the history of criminal justice, taking root in Anglo-American law only in the eighteenth century.¹⁰ As with movements to limit capital punishment, the adversary system took fullest root in the Northeast. In the Northeast, middle class persons committed to due process principles and the reform of criminal justice institutions and accepted the necessity of aggressive lawyering in the interest of legal fairness, although cohesive urban working class communities continued to acquit or convict defendants in line with traditional understandings of community justice.¹¹ In the South, whites persisted in observing customary communal notions of criminal justice for whites in and out of court, evinced comparatively little interest in reform of capital punishment, and sought to keep African American slaves out of court and instead subject to the punitive whims of the slaveholding class and the larger white community. However, these popular views clashed with an increasing emphasis in southern criminal law in the antebellum years on bringing slaves under the same courts and legal procedures as whites to demonstrate the ostensible consistency of slavery with developing American notions of legal fairness.¹² Complaints about an overabundance of lawyers and their intolerable manipulation of legal process abounded on the backwoods southern frontier, sometimes inspiring regulator movements.¹³ Southerners in the early republic and the antebellum era had not committed fully to due process law nor to the adversary system that supported it. The story was more complex, however, on the midwestern frontier, where Yankees and settlers from the Old Northwest and Upper South wielded competing notions of criminal justice. Frontier midwesterners with roots in New England and the Mid Atlantic tended to stress legal regularity and due process, whereas residents of the Lower Midwest who came from border regions and the South emphasized harsh and rapid punishment that coincided with communal prerogatives. The West would see an analogous m...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Contents
• Acknowledgments
• Introduction
• 1. Collective Violence in the British Atlantic
• 2. Vigilantes, Criminal Justice, and Antebellum Cultural Conflict
• 3. Racial and Class Frontiers: Lynching and Social Identity in Antebellum America
• 4. Lynchers versus Due Process: The Forging of Rough Justice
• 5. The Civil War and Reconstruction and the Remaking of American Lynching
• Epilogue
• Appendix: Lists of Confirmed Lynchings
• Notes
• Index