ALTHOUGH SUPPORTERS OF EQUAL RIGHTS WERE LOSING influence in Congress, they had gained a vital ally in the White House. Never had America elected a president as committed to equal rights and racial justice as Ulysses Grant, and would not do so again for at least another century.
Grant announced his intentions the day he took office, during his inaugural parade on March 4, 1869. The former general had assembled an immense military contingent—eight divisions—to march along the parade route. Unmistakable, even in the swarm of uniforms, were “the Lincoln Zouaves (colored), of Baltimore, mustered forty-eight strong,” in “blue flannel with yellow trimmings, and white legging, after the style of the French uniform,” and “the Henry Winter Davis Guards of Baltimore, (colored), numbering between fifty to sixty men, arrived next in line with the Zouaves.”1 Not even Lincoln had ever appeared at a state function in front of black troops.
After four years of war, Grant had no illusions about the South. He viewed the Klan as an opposing military force—especially under Bedford Forrest—and therefore one that could only be defeated by military means. The Fourteenth and Fifteenth Amendments, both of which he favored, would be only hollow verbiage without some tangible means to back them up. And so he threw his support behind three proposed laws, one in 1870 and two in 1871, to give the Fourteenth Amendment, and the Fifteenth once it was ratified, some heft. With the president’s endorsement, a mere majority, not two-thirds, was all that would be needed to make them law. If states’ rights advocates saw the Fourteenth and Fifteenth Amendments as taking aim at the Tenth, these three laws, which would be called “Enforcement” or “Force” acts, fired shots right at its heart.
The first, signed into law on May 31, 1870, after the Fifteenth Amendment had been ratified, made little secret of its intent, being called “An Act to enforce the Right of Citizens of the United States to vote in the several States of this Union, and for other purposes.” The first section, introduced in the House by John Bingham, contained the very sort of wording that he and Sumner had been unable to incorporate into the Fifteenth Amendment.
All citizens of the United States who are or shall be otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial sub-division, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding.2
The most important difference between the law and the amendment was that former said “shall be entitled and allowed to vote,” where the amendment read “shall not be denied.” The distinction, as it turned out, would be critical.
Other sections of the law, which came to be known as the “First Ku Klux Klan Act,” forbade discrimination in voter registration, made it a criminal offense to deny a person either the right to vote or the right to register, specified fines and prison terms for offenders, authorized military force to keep order at polling places, and outlawed “threats of depriving such person of employment or occupation, or of ejecting such person from rented house, lands, or other property, or by threats of refusing to renew leases or contracts for labor, or by threats of violence to himself or family.” It stipulated all persons, not just citizens, should be treated equally before the law, and attacked election fraud, here with particular emphasis on Northern Democrats, who were stealing elections in New York City. By extending federal enforcement to the North, Republicans were proposing a national system of election supervision.3
But white supremacist terror was the law’s main focus. Section 6 read,
If two or more persons shall band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with intent to violate any provision of this act, or to injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States, or because of his having exercised the same, such persons shall be held guilty of a felony, and, on conviction thereof, shall be fined or imprisoned, or both, at the discretion of the court—the fine not to exceed five thousand dollars, and the imprisonment not to exceed ten years—and shall, moreover, be thereafter ineligible to, and disabled from holding, any office or place of honor, profit, or trust created by the Constitution or laws of the United States.
As with the Fourteenth Amendment, jurisdiction was removed to federal court.
The second section of the Fifteenth Amendment had read, “The Congress shall have the power to enforce this article by appropriate legislation,” and now, only three months after its adoption, Congress had done so. The law also seemed to fall squarely under the Fourteenth Amendment’s guarantee of “equal protection of the laws,” which had, almost all Americans believed, been inserted in the Constitution to provide the very guarantees the new law codified.
This was just the sort of potent weapon the federal government needed to ensure the equal rights that had been promised to freedmen, and Grant intended to use it. To make certain the government had the necessary tools, in June 1870 Congress established a new cabinet-level office, which was called, provocatively to Southerners, “the Department of Justice.”4 To head the department, Grant made an odd choice.
Amos Akerman had been born in New Hampshire and attended Dartmouth College, but moved to Georgia after graduation. Although he opposed secession, he had served in the Confederate army, and had long believed the prosecution of civil rights violations should be left to the states. But he also had a deep sense of fairness. Once the war ended, he became an outspoken proponent of freedmen’s rights and switched to the Republican Party. Like the president, Akerman despised the Klan and everything it stood for. He had personally been menaced by white supremacists in his home state after he announced his new party affiliation. Grant, unlike with some of his other appointments, could not have made a better choice.
Actual prosecutions were limited in 1870, less than four dozen, although by year’s end 271 cases were on the docket, waiting to be brought to trial.5 The following year, Akerman would acquire two additional tools with which to work. On February 28, 1871, President Grant signed the second Enforcement Act, which stiffened some of the penalties specified in the first act but, more significantly, mandated federal supervision of congressional elections “from registration through the counting of ballots” in any municipality of more than 20,000 people, if two residents requested it.6
But more was needed, especially in South Carolina, large sections of which appeared to be descending into anarchy. Grant was inundated with pleas for help. On January 17, 1871, Robert Scott, the state’s Republican governor, requested increased federal commitment. “The outrages in Spartanburg and Union Counties in this state have become so numerous, and such a reign of terror exists, that but few Republicans dare sleep in their houses at night. A number of people have been whipped and murdered, and I see no remedy other than the stationing of U.S. troops in those counties.”7 Private citizens were writing to the president as well. Mrs. S. E. Lane of Chesterfield District implored,
I write to ask your help, your protection for us . . . Sir, we are in terror from Ku-Klux threats and outrages. There is neither law nor justice in our midst. Our nearest neighbor, a prominent Republican, now lies dead, murdered by a disguised Ruffian Band, which attacked his house at midnight a few nights since. His wife also was murdered. She was buried yesterday, and a daughter is lying dangerously ill from a shot wound.8
The atrocities were horrific, barbaric, and sickeningly commonplace. Most of the time, the perpetrators simply disappeared back into the night. In a case that actually did result in arrests and even convictions, “a night raid was made on the home of a black Republican by the name of Amzi Rainey. Klansmen fired upon Rainey and his family while his wife was holding a young child in her arms. They shot his older daughter in the head after they attempted to rape her. Rainey was saved from death only by promising he would never again vote the Republican ticket.”9
On March 23, 1871, Grant sent a message to both houses of Congress.
A condition of affairs now exists in some of the States of the Union rendering life and property insecure, and the carrying of the mails and the collections of the revenue dangerous. The proof that such a condition of affairs exists in some localities is now before the Senate. That the power to correct these evils is beyond the control of the State authorities I do not doubt; that the power of the Executive of the United States, acting within the limits of existing laws, is sufficient for present emergencies is not clear. Therefore I urgently recommend such legislation as in the judgment of Congress shall effectually secure life, liberty, and property, and the enforcement of law in all parts of the United States.10
To accomplish this goal, Grant asked for increased authority, including the right to suspend habeas corpus.
Democrats from the North as well as the South accused Grant of asking for dictatorial powers, and many Republicans were leery of what seemed an extreme step, but the prospect of wholesale slaughter across the South if nothing was done overrode their concerns. On April 20, 1871, Ulysses Grant signed a law that gave him the powers he had sought.
Although he sent additional troops to South Carolina, hoping to avoid what would amount to martial law, “Grant did not invoke his powers under the Ku Klux Act, and federal soldiers had no authority to undertake independent action; they were intended as escorts for state or federal officials who might fear resistance in the performance of their duties.”11
Through the summer and early fall, federal authorities attempted to find a peaceful solution—they sponsored conferences, conceded to a number of white demands, and kept the army, as much as possible, in the background. Grant dispatched Akerman to South Carolina to see for himself. The attorney general wrote later in a letter to a friend that it was his opinion
that nothing is more idle than to attempt to conciliate by kindness that portion of the southern people who are still malcontent. They take all kindness on the part of the Government as evidence of timidity, and hence are emboldened to lawlessness by it. It appears impossible for the Government to win their affection. But it can command their respect by the exercise of its powers.12
Soon thereafter, Ulysses Grant suspended habeas corpus in nine South Carolina counties, the first time that had ever been done in peacetime. Federal enforcement and prosecutions drastically increased, and while in many cases convictions were hard to come by, there were enough of them that most considered the Klan to have been at least neutered. “At the beginning of 1872, federal officers felt they were on the verge of destroying the Klan. They were also heartened by the sharp curtailment of violence that had resulted from their efforts.” In South Carolina, the impact had been acute. “Federal prosecutions had so demoralized members of the Ku Klux Klan there that its leaders issued orders to stop all Klan activity.”13
With the sharp reduction in intimidation and violence—although it was by no means eliminated—black voting increased and so did the number of African Americans elected to important offices. In the 1872 elections, more than 320 federal and state legislators were voted into office, the highest number ever, forty more than in the 1870 elections, and a number not to be matched for well more than a century.14 During that two-year period, ten African Americans were elected to the House, and one, Hiram Revels of Mississippi, appointed to the Senate.
Although these numbers would soon plummet, what is most vital to glean from this episode was that both sides had no doubt that voting by African Americans was the linchpin of their success. Guarantee the black vote and Reconstruction had a chance to succeed, perhaps even leading to racial tolerance; eliminate it and Redeemers—militant whites determined to return the South to prewar rule—would reign, with white supremacy the basis of any Southern political system. As such, the suppression of the Klan in no way implied that attempts by Redeemers to deny black Americans their right to vote were at an end. Quite the reverse. Redeemers saw themselves fighting an extension of the war they had temporarily lost on the battlefield, with their values, their futures, and what they saw as an honorable way of life at stake.
To continue their struggle, not only would violence and intimidation continue, but Southern whites would also shift to new tactics, fraud and duplicity, exploiting the very ambiguities of the Fifteenth Amendment about which John Bingham and his allies had warned. Against this second wave of voter suppression, military force would have no effect. This battlefield would be the courtroom.