by Ron Chernow
The same week that Grant appointed Akerman, Congress created the Department of Justice. Before then, the attorney general had functioned as the president’s legal adviser, operating from the Treasury building without the dignity of a separate department. Now he would head an active department with a substantial array of new powers. In part its creation was a practical measure to consolidate government lawyers and litigation in one department, sparing cabinet members the expense of hiring outside attorneys and thus reducing conflicts of interest. Civil service reformers also spotted a chance to streamline the government’s legal capacity and enhance efficiency. The new department immediately faced a pressing task to ensure compliance with the Thirteenth, Fourteenth, and Fifteenth Amendments, which had sparked an explosion in litigation. That racial justice stood very high among Akerman’s priorities was underscored when he set up Justice Department headquarters in the new Freedman’s Savings Bank building.
In shaping the department, Congress provided for a solicitor general who would act as the government’s main attorney, arguing cases before the Supreme Court and offering counsel to U.S. attorneys and marshals. The first occupant was another outstanding choice—the bearded Benjamin Helm Bristow, a crusading U.S. attorney from Kentucky. Educated at Jefferson College in Pennsylvania, Bristow had been a “Kentucky bluejay” who bucked local sympathy for the Confederacy, helped to assemble two federal regiments in Kentucky, and fought with Grant at Fort Donelson and Shiloh before joining the state senate. He had “a bluff, frank” personality, said one reporter, who thought he conveyed “a very marked impression of personal strength.”53 After the war, he worked to assemble a moderate Republican Party in Kentucky and won plaudits as a U.S. attorney of high integrity and legal excellence, committed to black civil rights. Just before Akerman’s appointment, Bristow wrote from Kentucky to Attorney General Hoar: “It is a matter of first importance to the 225,000 Colored people of this state that the so-called ‘Civil Rights’ law of Congress should be maintained and enforced.”54
The new Justice Department would forge its identity in the battle to slay the Ku Klux Klan and such offshoots as the Knights of the White Camellia. Having disbanded Confederate armies, the North had not stopped the emergence of quasi-military organizations throughout the South. In describing the Klan’s tight grip over the region, Grant summoned his most emphatic language, saying its purpose was “by force and terror . . . to deprive colored citizens of the right to bear arms and of the right to a free ballot, to suppress schools in which colored children were taught, and to reduce the colored people to a condition closely akin to that of slavery.”55
Grant constantly received desperate pleas from southern governors for help with the Klan. In March 1870, Governor William W. Holden of North Carolina warned of a rising tide of Klan terror in his state: “Bands of these armed men ride at night through various neighborhoods, whipping and maltreating peaceable citizens, hanging some, burning churches and breaking up schools which have been established for the colored people.”56 By July, Holden feared his paltry force of six hundred soldiers would be overwhelmed by Klan marauders. Grant acted vigorously to stem the North Carolina violence, promising Holden “to send more troops to the State without delay.”57 Holden pinpointed the essence of the problem: witnesses were too terrified to testify against Klan members, and juries to convict them, enabling the secret society to flout local courts with impunity. Those who cooperated in Klan prosecutions were almost guaranteed to suffer vicious reprisals. One district attorney in Mississippi despaired when five of his main witnesses were murdered. “I cannot get witnesses as all feel it is sure death to testify before the Grand Jury,” he wrote.58
At election time, the Klan acted to intimidate black voters and elect white Democrats. It tried to undo Reconstruction and re-create the status quo ante of a submissive black workforce, lorded over by white masters. In October 1870, Governor Robert K. Scott of South Carolina told Grant his state had endured an election campaign that “for rancor and virulence . . . has never been excelled in any civilized community . . . Colored men and women have been dragged from their homes at the dead hour of night and most cruelly and brutally scourged for the sole reason that they dared to exercise their own opinions upon political subjects.”59 A shaken Scott added: “I have within a few moments witnessed in my own office a spectacle that has chilled my blood with horror.” Four citizens were “at the dead hour of night dragged from their homes and lashed on their bare backs until the flayed flesh hung dripping in shreds, and seams were gaping in their mangled bodies large enough to lay my finger in.”60
Organized in thousands of scattered groups and billing itself as the Invisible Empire, the Klan launched a new civil war by clandestine means. The menace had spread to every southern county. As Governor William H. Smith of Alabama informed Grant, “Things look here very much as they did in 1860 . . . If Alabama can be carried by intimidation & fraud so can every other state South, & the whole south will be lost to the Republican party.”61 One southern Unionist described things unequivocally: “The Ku Klux business is the worst thing that ever afflicted the South.”62 It became hard to see how the Republican Party could survive in the South without the shield of federal protection. Former abolitionists latched on to the new cause of combating the KKK. If the Civil War had to be fought over again, they favored Grant back in the starring role. “There [is] still a state of war with the South,” declared Wendell Phillips. “Let General Grant lay his hand on the leaders in the South, and you will never hear of the Ku-Klux again.”63
Grant was swamped with letters from southern blacks and white Republicans who graphically described the nightmare descending on their towns. Typical was a letter from a Mrs. S. E. Lane in South Carolina, who said she and her husband were “true & hearty Republicans . . . but Sir, we are in terror from Ku-Klux threats & outrages . . . 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 . . . & a daughter is lying dangerously ill from a shot-wound—my Husband’s life is threatened . . . we are in constant fear & terror—our nights are sleepless, we are filled with anxiety & dismay.”64 From senior politicians down to lowly sharecroppers, people sent Grant hair-raising descriptions of night riders that gave him a comprehensive grasp of the terror. However clumsy his handling of Dominican annexation, he was sure-footed when it came to protecting freed people and handling other matters arising from the war. In pursuing the Klan, he showed to advantage his persistence, simplicity, and innate stubbornness. Through the Justice Department, the federal government would emerge as the undisputed champion of civil liberties in the southern states, carving out a new role.
Battle lines hardened in the 1870 election, which represented a worrisome setback for the Grant administration. Democrats coasted to victory in New York, Indiana, Missouri, West Virginia, and Tennessee, while the Republican majority in Congress shrank drastically. The election was noteworthy for having six black candidates elected to Congress from the Deep South, including three from South Carolina, cradle of the Confederacy. Of the six black congressmen, four were born into slavery. The election of black Republicans fed a continuing white backlash, one New York newspaper noting snidely that Congress “will soon have its full proportion of darkey members.”65 In the South, violence directed against Republicans allowed the Democrats to reclaim—or as they preferred to call it redeem—power lost in Georgia, Alabama, and Florida. “It seems that we are drifting . . . back under the leadership of the slave holders,” a black Republican moaned.66 The southern states had now been readmitted to the Union with full congressional representation, but far from adumbrating a new era of harmony, it signaled the start of a deepening era of polarization.
In Mississippi, the troubled situation was thrown into bold relief as scores of black churches and schools were burned without prosecutions. In March 1871, three blacks in the small town of Meridi
an were brought up on charges of delivering “incendiary” speeches. At the court hearing, the Republican judge and two black defendants were killed. The violence spilled over into gruesome riots in which thirty blacks were gunned down, including “all the leading colored men of the town with one or two exceptions.”67 During the first three months of that sanguinary year, sixty-three blacks were murdered in Mississippi and nobody served a day for these crimes.
In May 1870, Congress had passed the first Enforcement Act to protect the voting rights granted by the Fifteenth Amendment by banning the use of force or intimidation to abridge the right to vote because of race. Widespread voting irregularities in the South led Grant on February 28, 1871, to sign yet another Enforcement Act, which strengthened federal oversight of the voting process, especially in large cities. Henceforth, federal judges could appoint election officials to supervise registration and voting methods and certify the accuracy of returns, insisting upon the use of written ballots.
But all such reforms would die aborning if the root problem was not eradicated: the Ku Klux Klan. Increasingly Grant was flooded with appeals from Republican southern governors to slay the epidemic of Klan violence in their states. “This organized conspiracy is in existence in every County of the State,” Governor Holden of North Carolina warned. “It is believed that its leaders now direct the movements of the present Legislature.”68 Governor Scott of South Carolina notified Grant that two counties, Spartanburg and Union, had experienced such a “reign of terror” by Klansmen that “but few Republicans dare sleep in their houses at night.”69 Every night thousands of blacks fled into the woods for asylum. From two Carolina congressmen, Grant heard how members of a black militia had been arrested for allegedly killing a white man. The Klan invaded the jail and murdered the black captain and five of his men. Upon learning that the remaining eight black militiamen were to be transferred to another county, five hundred masked Klansmen raided the jail, overpowered the jailer, and lynched the defendants. The congressmen concluded that South Carolina’s government was “powerless to preserve law and order . . . the constituted authorities invoke the strong arm of the United States to do so.”70
In late February, Grant read aloud to his cabinet a horrifying report about the murders, whippings, and violence overtaking South Carolina. He sent troops to the state to halt the spreading disorder and swore that federal cavalry would remain even if they had to stay “during the remainder of his administration.”71 Soon Major Lewis Merrill, a man with “the head, face, and spectacles of a German professor and the frame of an athlete,” was sent to South Carolina to protect the black community as part of Attorney General Akerman’s grand strategy for demolishing the Klan.72 In a controversial move, Merrill had army officers arrest Klan members while he enlisted U.S. attorneys to try their cases and lined up federal judges to oversee their trials. These were groundbreaking decisions that for the first time enabled the federal government instead of state and local governments to punish “private criminal acts.”73
Klan violence was unquestionably the worst outbreak of domestic terrorism in American history and Grant dealt with it aggressively, using all the instruments at his disposal. To strengthen the federal arsenal, he urged Congress to widen his executive powers and insisted the new Forty-Second Congress meet on March 4, 1871, instead of waiting until that December, to do so. So strongly did Grant feel about Klan atrocities that he beseeched House Speaker James G. Blaine to focus exclusively on legislation to uproot these domestic terrorists: “If the attention of Congress can be confined to the single subject of providing means for the protection of life and property . . . I feel that we should have such legislation.”74 While conservative Republicans and Democrats squawked that Grant trespassed on states’ rights—a sacred cause in the South—he employed every weapon in his repertoire to suppress Klan violence. To accentuate just how deeply he felt, he marched up to Capitol Hill, accompanied by virtually every member of his cabinet, and lobbied for an explicitly anti-Klan bill, leaving the particulars up to legislators. He was so fixated on the Klan that Representative James A. Garfield of Ohio complained privately that Grant was “very anxious that Congress shall do nothing else, but legislate, concerning the Ku Klux.”75 The purpose of the proposed legislation was to force state compliance with the new constitutional amendment. “It seems to me, that this will virtually empower the President to abolish the State Governments,” Garfield protested. “I am in great trouble about the whole matter.”76
Refusing to backtrack, Grant plunged ahead. When Congress formed a select committee to consider Klan legislation, it encountered extraordinary resistance. Democrats construed the Ku Klux bill not as an effort to save southern blacks from wanton terror, but as a political swindle to extend Republican rule in the South. As Congressman James B. Beck of Kentucky said, “Many of you would rather see the President dictator to-day than to see the Democratic party come into power and expose the outrageous acts your party has committed.”77 Grant was dubbed “Kaiser Grant” and derided as a power-hungry, lazy, and negligent president, who wielded patronage to advance his fortunes. Senator Garrett Davis of Kentucky ridiculed him as incompetent and unfit for office while Representative John B. Hawley of Illinois labeled him “a despot; a dictator,” who would “override the liberties of this great people.”78 The press debate was no less heated, and the Chicago Times blasted Grant as “the chief of a Ku Klux Klan more powerful than that of the South.”79 One of his most scathing critics was none other than William Tecumseh Sherman. “If Ku-klux bills were kept out of Congress, and the army kept at their legitimate duties,” he told a New Orleans audience, “there are enough good and true men in all Southern States to put down all Ku-klux or other bands of marauders.”80 Many Democrats claimed that Klan atrocities were so many fairy tales dreamed up by Republicans for political expediency and denounced the Klan legislation as unconstitutional.
Fortunately for Grant, the fervor on his side was equally passionate. Frederick Douglass wisely saw that the random corruption cases that tarnished the administration’s reputation were far less consequential than the president’s unqualified support for southern blacks. Reconstruction was the essential sequel to the Civil War, completing its mission. “If we stand by President Grant and his administration,” he wrote, “it is from no spirit of hero worship or blind attachment to mere party, but because in this hour there is no middle ground. [Grant] is for stamping out this murderous ku-klux as he stamped out the rebellion.”81
On April 20, 1871, Grant returned victorious to Capitol Hill to sign the third Enforcement Act, commonly known as the Ku Klux Klan Act. He had planned a California trip that spring, but canceled it in the belief that he couldn’t sidestep this historic moment. The strong new measure laid down criminal penalties for depriving citizens of their rights under the Fourteenth Amendment, including holding office, sitting on a jury, or casting a vote. The federal government could prosecute such cases when state governments refused to act. The law also endowed Grant with extraordinary powers to suspend habeas corpus, declare martial law, and send in troops. To halt night riders, the act made it illegal “to conspire together, or go in disguise upon the public highway . . . for the purpose . . . of depriving any person . . . of equal protection of the law.”82 However loathed in the South, the law stood as a magnificent achievement for Grant, who had initiated and rallied support for it, never wavering. To further strengthen it, he issued General Orders No. 48, allowing federal troops to arrest violators of the Ku Klux Klan Act and break up and disperse “bands of disguised marauders.”83
The man who implemented this bold agenda was Akerman, who thought Reconstruction best served the long-term interests of the enlightened South, properly understood. To those who protested its severity, he responded that nothing was “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.”84 For Akerman,
the Klan’s actions “amount to war, and cannot be effectually crushed on any theory.”85 The metaphor didn’t seem excessive, for the Klan resisted by force any effort to restrain it, reflected in Nathan Bedford Forrest’s bloodthirsty injunction to his followers: “If they send the black men to hunt those confederate soldiers whom they call kuklux, then I say to you, ‘Go out and shoot the radicals.’”86
On May 3, Grant issued a proclamation containing a ringing defense of the Ku Klux Klan Act, calling it a “law of extraordinary public importance.”87 Never mentioning the Klan by name, he alluded to “combinations of lawless and disaffected persons.” To those who bridled at the enhanced use of federal power, denounced “bayonet rule,” and brandished the states’ rights banner, he implored them to use local laws to suppress the Klan and obviate the need for federal troops. If that didn’t happen, the inaction of local communities “imposes upon the National Government the duty of putting forth all its energies for the protection of its citizens of every race and color.”88 If states abdicated responsibility, Grant was prepared to use the full panoply of federal power in response. At the same time, he issued orders to federal troops in South Carolina and Mississippi “to arrest disguised night marauders and break up their bands.”89 In countering the Klan, Grant found himself back in familiar territory, operating as general in chief. Whenever he returned to war-related issues, Grant showed a sure grasp of both his values and methods. He knew that the Klan threatened to unravel everything he and Lincoln and Union soldiers had accomplished at great cost in blood and treasure.
