Echoes of Reconstruction: Grant’s Suspension of Habeas Corpus in Parts of South Carolina to Fight Klan in 1871

from Harper’s Weekly

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. 

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3 Responses to Echoes of Reconstruction: Grant’s Suspension of Habeas Corpus in Parts of South Carolina to Fight Klan in 1871

  1. Rod says:

    It is all dependent upon how your spin it. Was there a true moral concern for ex-slaves? Was the Republican Party really concerned about people of color, or was there a sinister ulterior motive at work? Perhaps we should look at what those in power in Washington DC were doing to the Plains Indians at this very time for the real answer.

    We’re indoctrinated to look at what was going on in the South at this time through the lens of race. It blurs the reality that what was going on at this time was a Republican Party strategy to politically control the South through the disenfranchisement of Southerners who would have voted their own best interests, and the deliberate attempt to turn former slaves against their former masters, using hate speech and empty promises to create a Republican Party voting block in the South through which the North could maintain economic exploitation that for the next 100 years would impoverish the Southern people, both black and white. The post-war era in the Southern States was really the continuation of North against South, where Northern ambitions were exploitation and any benefit to civil rights an unintended consequence of maintaining political power to enable that exploitation.

    When the Republicans were able to maintain power without needing the Southern States, they quickly abandoned the Southerners to live in a divisive and racially charged social atmosphere the Republican Party itself had created. Yet all this is spun today as the South having defeated a great moral crusade to bring civil rights to the South. History has been stood on its head regarding good and evil.

    • Pat Young says:

      Rod, I did not make any moral claims about those trying to enforce the 14th and 15th Amendments and those resisting enforcement, but you did. In fact, you state at the end of your comment that “History has been stood on its head regarding good and evil,” the implication being that the pre-Reconstruction period, i.e. the Slavery Era, was the “good” period, and the post Emancipation period the “evil” one, I suppose.

      You argue that after Reconstruction “Southerners” were forced to “live in a divisive and racially charged social atmosphere the Republican Party itself had created.” I note that slavery began in the South in 1619, more than two centuries before the Republican Party came into existence. This enslavement created the racially divisive “social atmosphere.” Difficult to see how Republicans, or anyone alive in 1871, “created” the racially divisive situation in South Carolina in 1871. However, those white Southerners who murdered Black Southerners did reenforce the divisions.

      You also claim that Republicans turned “former slaves against their former masters, using hate speech and empty promises to create a Republican Party voting block.” While Republicans did mobilize Black voters in 1868 and again in 1872, let us remember that initially following the Civil War Republicans did not even view Blacks as a voting block. It was Black Southerners who demanded the vote to defend themselves against the violently racist laws passed in the former Confederate states by all-white electorates in 1865 and 1866. You may want to familiarize yourself with the many petitions submitted by Black Southerners demanding the vote and Federal protections from white terrorist groups like the Ku Klux Klan, et al.

  2. Joseph says:

    I disagree with Rod. I believe also that he has besmirched Pres. Grant’s good name, inferring that he had sinister or long-reaching, conspiratorial motives in issuing his proclamation. Could it be simply that it was a necessary and entirely justified decision following years of ill treatment and murder of blacks and Republicans?

    The killers and their sympathizers, attempting to regain their former rule of bullwhip, Bowie knife and pistol, were numerous and outside the law. They were defying the federal government. Grant was correct to suspend habeas corpus.

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