Emerging Civil War is pleased to welcome back Patrick Young, author of The Reconstruction Era blog.
On October 17, 1871, President Ulysses S. Grant suspended the Writ of Habeas Corpus in nine counties in South Carolina. During the previous year the Ku Klux Klan and other white supremacist armed groups had unleashed a campaign of violence against African Americans and representatives of the state and Federal governments in those counties.
Habeas Corpus is an important protection of the rights of prisoners. It allows the prisoner to be heard by a court to challenge an unlawful arrest. As a law student, I was taught that the phrase means “Produce the body.” While that is not an exact translation from Latin, what it signifies is the court’s role in demanding that a prisoner appear before the court, whether the police want the detainee to go to court or not.
In 1867, Republican supporters of civil rights had actually expanded Federal Habeas Corpus protections. Prior to 1867, prisoners held under state laws could only file for a habeas corpus review of their confinement in a state court. This 1867 act granted a Federal court jurisdiction: “in all cases where any person may be restrained of his or her liberty in violation of the constitution, or any treaty or law of the United States.” Federal courts could now entertain petitions for a writ involving a prisoner in a state jail. The act was designed to allow Federal judges to review the detention of Blacks held in state jails. The white-run legal systems in the former-Confederate states had used detention of Blacks after the Civil War as a new form of slavery. In 1865 to 1867, Blacks were sold at the prisons and court houses for one year terms of labor to local “masters.” This new provision allowed the practice to at least be challenged in Federal courts.
Article I Section 9 of the Constitution says that Habeas Corpus may not be suspended except in cases of “invasion” or “rebellion.” Grant suspended Habeas in Spartanburg, York, Marion, Chester, Laurens, Newberry, Fairfield, Lancaster, and Chesterfield counties. Those counties were arguably in a state of rebellion, with racial violence widespread and likely to make a fair election impossible in the 1872 election year. If Blacks could be prevented from voting in South Carolina, democracy would be subverted. Blacks formed a majority of the population of the state and were the key to both the state’s elected offices and the presidency.
In the recently concluded 1870 Census, out of a total population of 705,606 in South Carolina, only 289,667 were white while 415,814 were Black. The state’s population was 41% white and 59% Black. A majority of potential voters were now African American.
Many of the counties with the worst anti-Black terrorism were those where the white and Black populations were close in number. For example, York County, one of the most violent in the state, had 12,114 whites and 12,167 Blacks. Laurens had 9,904 whites and 12,632 Blacks. Lancaster had 6,159 whites and 5,024 Blacks. All three counties fell under Grant’s new executive order. Counties with large Black majorities did not see as much racial violence. For instance, Abbeville had only 10,916 whites in 1870 but 20,213 Blacks. Coastal Georgetown, with only 2,773 whites, was relatively peaceful. Its 13,338 African Americans were too numerous to overawe with killings.
Meanwhile, beginning in 1870, dozens of Blacks and Republicans had been murdered by the Klan and other white supremacist groups in the nine counties impacted by Grant’s suspension of Habeas Corpus.
Grant said that his suspension of Habeas Corpus was pursuant to the 14th Amendment and the Ku Klux Klan Act of April 20, 1871. Here is Grant’s official explanation for taking this action:
Whereas by an act of Congress entitled “An act to enforce the provisions of the fourteenth amendment to the Constitution of the United States, and for other purposes,” approved the 20th day of April, A. D. 1871, power is given to the President of the United States, when in his judgment the public safety shall require it, to suspend the privileges of the writ of habeas corpus in any State or part of a State whenever combinations and conspiracies exist in such State or part of a State for the purpose of depriving any portion or class of the people of such State of the rights, privileges, immunities, and protection named in the Constitution of the United States and secured by the act of Congress aforesaid; and whenever such combinations and conspiracies do so obstruct and hinder the execution of the laws of any such State and of the United States as to deprive the people aforesaid of the rights, privileges, immunities, and protection aforesaid, and do oppose and obstruct the laws of the United States and their due execution, and impede and obstruct the due course of justice under the same; and whenever such combinations shall be organized and armed, and so numerous and powerful as to be able by violence either to overthrow or to set at defiance the constituted authorities of said State and of the United States within such State; and whenever by reason of said causes the conviction of such offenders and the preservation of the public peace shall become in such State…impracticable; and
Whereas such unlawful combinations and conspiracies for the purposes aforesaid are declared by the act of Congress aforesaid to be rebellion against the Government of the United States; and
Whereas by said act of Congress it is provided that before the President shall suspend the privileges of the writ of habeas corpus he shall first have made proclamation commanding such insurgents to disperse; and
Whereas on the 12th day of the present month of October the President of the United States did issue his proclamation, reciting therein…that such combinations and conspiracies did then exist in the counties of Spartanburg, York, Marion, Chester, Laurens, Newberry, Fairfield, Lancaster, and Chesterfield, in the State of South Carolina, and commanding thereby all persons composing such unlawful combinations and conspiracies to disperse and retire peaceably to their homes within five days from the date thereof, and to deliver either to the marshal of the United States for the district of South Carolina, or to any of his deputies, or to any military officer of the United States within said counties, all arms, ammunition, uniforms, disguises, and other means and implements used, kept, possessed, or controlled by them for carrying out the unlawful purposes for which the said combinations and conspiracies are organized; and
Whereas the insurgents engaged in such unlawful combinations and conspiracies within the counties aforesaid have not dispersed and retired peaceably to their respective homes, and have not delivered to the marshal of the United States, or to any of his deputies, or to any military officer of the United States within said counties, all arms, ammunition, uniforms, disguises, and other means and implements used, kept, possessed, or controlled by them for carrying out the unlawful purposes for which the combinations and conspiracies are organized, as commanded by said proclamation, but do still persist in the unlawful combinations and conspiracies aforesaid…
Grant concluded “that in my judgment the public safety especially requires that the privileges of the writ of habeas corpus be suspended, to the end that such rebellion may be overthrown, and [I] do hereby suspend the privileges of the writ of habeas corpus within the counties…”
Using the 14th Amendment, the Federal Courts, and the United States Cavalry Grant was able to end the reign of terror by 1872. When it reappeared under the Red Shirt guise in 1876, he was not as willing to take radical action to protect Black voters and former Confederate Wade Hapton took office as South Carolina’s governor as a result of an electoral coup. This was the beginning of the suspension of democracy in the state for three generations.