by Philip Dray
On a visit to Washington he came to the attention of Republican legislators who saw in the transplanted Northerner a potential ally, someone who could help protect freedmen's rights as well as the future of the Republican Party in the South. Congressman Butler helped persuade President Grant of the value of placing a man like Akerman in the cabi net as a show of confidence in and support for all Southern Republicans. Who better than a man with proven loyalty to the South to take the reins of the newly established Justice Department as it faced the politically sensitive dilemma of dealing with the Klan?
Prior to the creation of the Justice Department, the federal government had hired lawyers to argue its cases, a method both expensive and frequently ineffectual. The new department would rely on federal district attorneys as well as the solicitor general—a new position—to see that federal law was observed, a timely adjustment to counter Southern lawlessness and the ineffectiveness of local courts there. Akerman identified thoroughly with his mission but "discovered at Washington, even among Republicans," he told Charles Sumner, "a hesitation to exercise the powers to redress wrongs in the states. This surprised me. For unless the people become used to the exercise of these powers now, while the national spirit is still warm with the glow of the late war, there will be an indisposition to exercise them hereafter, and the 'States Rights' spirit may grow troublesome again."
Akerman was by now impatient with his Southern neighbors' continued rejection of the outcome of the war, and he held the deepest contempt for night riding and political violence, which he called "KuKluxery." What especially worried him, and what he feared most Northerners failed to appreciate, was that Klan intimidation often went well beyond night riding. The midnight visit to a freedman's cabin by a handful of local vigilantes could seem almost quaint compared to what the Klan looked like at full strength—scores of men, some in disguises, some in tattered Confederate gray, raising the dust of a sleepy courthouse town, thoroughly overwhelming its citizens and authorities alike. He also was perhaps the lone high-ranking federal official who knew what it was to live in fear of the Klan, for he had a wife and several children still residing in Georgia.
"One cause of [the] readiness to secede in 1861 was the popular notion that the government at Washington was a distant affair, of very little importance to us," he wrote of his fellow Southerners, emphasizing that the federal response to the Klan must be consistent and thorough. "They have now been taught better. They ought not to be allowed to forget the lesson." He cautioned against any appeasement or "attempt to conciliate by kindness that portion of the Southern people who are still malevolent. They take all kindness on the part of the government as evidence of humility and hence are emboldened to lawlessness by it." Akerman no doubt pleased President Grant with his conviction that Klan activity should be quelled without sending additional federal troops into the South. The trend had been one of gradual withdrawal, as troop levels across the South fell from twelve thousand in 1868 to six thousand a year later; any new buildup would smack of renewed sectional confrontation. Akerman wanted instead to use the federal courts to pursue Klansmen as vicious criminals, isolating them from Southern society. The legal teeth for such an approach would be provided by pending legislation that would become known as the Ku Klux Klan Act.
While Joseph Rainey's plea to Congress about the Klan had been both personal and affecting, it was his colleague, twenty-eight-year-old Robert Brown Elliott, a lawyer and a publishing partner to Richard "Daddy" Cain, who offered the most compelling argument for passage of a special Ku Klux Klan bill.
A square-shouldered man of medium height, "black as a highly polished boot," Elliott appeared to journalist Marie Le Baron a "distinguished and agreeable figure" who evinced "no awkward gesture, no obsequious movement to point back to a life of cringing servitude." He claimed that he was born in Boston in August 1842, that his family had then lived briefly in Jamaica, and that as a young man he had been taken to England, where he attended Eton and studied law before returning in 1861 to America, where he eventually enlisted in the Union army. However, Peggy Lamson, a twentieth-century biographer who diligently examined Elliott's past, found no record of his birth in Boston or his schooling in England, nor any evidence that he ever wore a soldier's uniform. What his contemporaries did know was that he was articulate, well educated, capable as a printer, and knowledgeable in the practice of law. He was also multilingual, speaking passable French and Spanish as well as English, and was versed in the classics, to which, like his hero Charles Sumner, he often alluded in his orations. More intriguing was the fact that despite so much time abroad, he was conversant with the "political condition of every nook and corner" of South Carolina, "every important person in every county, village, or town...[and] the history of the entire state as it related to politics."
So who was he? A favored slave who had received an education (his African appearance seemed to rule out the likelihood of even partial white parentage), or an opportunistic Englishman who had made his way to the New World? It seems odd that during Elliott's lifetime it was universally accepted that he had lived many years in Jamaica and
England, yet there is no mention in accounts of his numerous speeches that he spoke with a British inflection. It's equally remarkable that for a man who had countless political enemies and who was often under assault from the home-state press, the details he gave of his background seem to go unchallenged.
ROBERT BROWN ELLIOTT
Whatever his origins, Elliott lived well in South Carolina, possessed an extensive library, and married one of the most beautiful quadroons in the state, Grace Lee, who had been a house servant and governess to a prominent white family. Numerous contemporary accounts note her poise and natural elegance as well as Elliott's short temper where his wife's reputation was concerned. Ironically, this most African-looking man had, in addition to his taste for classical scholarship, another trait common to the native-born Southern aristocrat: an easily violated sense of personal honor. In late October 1869 Elliott accused James D. Kavanaugh, a former Union soldier, of writing notes to his wife; confronting the white man outside a government building in Columbia, he shoved him to the ground and repeatedly thrashed him with a whip. Elliott's behavior was not atypical in an age that saw Southern gentlemen routinely cane one another or inflict other "bodily chastisements." What made the assault newsworthy was that, as a black man defending his wife's good name, he was directly challenging the traditional notion that black women were approachable and sexually available to white men, a condition black men had for generations painfully endured. "A Negro from Massachusetts Cowhides a White Carpetbagger" reported the next day's Charleston Daily News, slyly inquiring why Yankees kept asserting that blacks were their equals when it appeared that Elliott was actually superior to Kavanaugh.
In Washington, Congressman Elliott was a tactful spokesperson for his race; several times he led delegations to confer with President Grant. On the House floor, however, he could be combative, as when, in defense of the Ku Klux Klan bill, he tangled with the Democrat Michael C. Kerr of Indiana. Kerr, arguing states' rights, suggested that the Constitution allowed the federal government to interfere only if a state requested help. "The United States shall guarantee to every State in the Union a republican form of government," Kerr said, citing Article IV, Section 4, of the Constitution, "and shall protect each of them against invasion, and on application of the Legislature or of the Executive (when the Legislature cannot be convened) against domestic violence." There was no basis for federal intervention, he emphasized, when the legislature or the governor did not request assistance. Elliott disagreed with Kerr's interpretation, saying the article meant that the nation did have an obligation to defend, in each state, a republican form of government—precisely what was under assault in South Carolina. "In this case the duty imposed upon the Federal Government is to protect the States 'against domestic violence,'" Elliot said. "The clause is not inhibitory, but mandatory. It was evidently not designed to restrict the
rights, but to enlarge the duties of the Government."
Elliott pointed out that the clause about the governor's request could not stand as the sole means by which intervention would occur, for the governor himself might be complicit in affiicting the people of a state. "Otherwise," Elliott pointed out, "a faithless and undutiful Executive, assisting the insurgent authors of the 'domestic violence,' might, by withholding his 'application,' render the Government of the United States a torpid and paralyzed spectator of the oppressions of its citizens." Kerr's formula for federal intervention, Elliott quipped, reminded him of the story of the aristocrat who apologized for watching a man drown before his eyes, explaining that they had not been properly introduced. (Elliott's joking at Kerr's expense, a black man openly mocking a white, did not sit well with congressional Democrats, several of whom walked out during his remarks.)
Kerr then argued that the outrages in South Carolina were being carried out by "a very small number of persons," and only in a few localities. "They are merely common criminals," he said, "without politics or higher motives." Elliott countered by reading a long list of known offenses and deadly Ku Klux threats, as well as warnings made to employers not to hire blacks or Republicans. He also called Congress's attention to several local newspaper editorials from South Carolina that called for what had come to be known as the "Straightout" Democratic policy, one that had as its goal not only electoral victory over the Republicans but also their obliteration as an active political entity. Contradicting the frequent charge that "the Republican party is answerable for the existing state of affairs in the South," Elliott stated that "the troubles are usually in those sections in which the Democrats have a predominance in power, and, not content with this, desire to be supreme."
Horace Greeley, the editor of the New York Tribune, criticized Elliott for his comments, believing he had unfairly impugned the Southern planter class. Elliott replied in a letter (which Greeley published) that he had not said that planters were Klansmen, only that they supported them.
Possibly, Mr. Editor, your graciousness to recalcitrant Confederates would be somewhat modified if you lived, as I do, within the theatre of their operations. Men often bear the misfortunes of their neighbors with great equanimity, and are ready most graciously to forgive wrongs to which they cannot be personally subjected. Thus the philosopher Seneca, seated in his magnificent villa, surrounded by symbols of opulence, wrote upon tablets of gold his famous "Essay on the Beauties and Advantages of Poverty."
Frederick Douglass joined the debate in the pages of his New National Era, arguing that the clarity of the Civil War conflict may have been preferable to the scurrilous mischief of the Klan. "Rebellion, at least, is honest, in so far that it makes war in broad daylight against organized forces, while, on the contrary, those dastardly gangs direct their attacks against single, defenseless individuals, and surprise, torture, and assassinate them in disguise and under the cover of night."
In late March 1871 Grant sided formally with the advocates of the bill, telling Congress, "A condition of affairs exists in some of the states of the Union rendering life and property insecure ... That the power to correct these evils is beyond the control of the state authorities I do not doubt ... therefore I urgently recommend such legislation as, in the judgment of Congress, shall effectually secure life, liberty, and property, and the enforcement of the law in all parts of the United States."
The Ku Klux Klan Act, which passed on April 20, expanded on the earlier Enforcement Acts by outlawing conspiracies to obstruct or hinder the equal rights protection of citizens under the law, including the rights of due process, and by asserting that such acts constituted "rebellion against the government of the United States." Its passage meant that cases involving Klan attacks on freedmen and others in South Carolina would receive a hearing in federal court and that the president was authorized to suspend the writ of habeas corpus, which gives imprisoned suspects the right to know why they are being held, so that large-scale roundups of Klansmen could be carried out and the accused held until testimony and witnesses were arranged. It also allowed Grant the option of dispatching federal troops without a state's formal request, and it mandated that both petit and grand jurors sitting on Klan cases would have to swear they had never taken part in the organization's activities.
Visiting South Carolina that summer, Attorney General Akerman went to York County to examine the considerable evidence against the Klan assembled by Major Lewis Merrill, a local commander of federal troops. Merrill, who impressed the attorney general as "very indignant at wrong, and yet master of his indignation," told Akerman he'd gathered evidence of eleven murders and more than six hundred whippings and other crimes, and that numerous victims of the Klan, potential witnesses, were now residing in army encampments under federal protection. Merrill, called "Dog Merrill" by resentful Klansmen, confirmed that prosecutions against alleged Klan suspects in local courts were impossible. Akerman, leaving for the North, concluded that substantial parts of South Carolina were in open rebellion and "under the domination of systematic and organized depravity," and he advised Grant to suspend the writ of habeas corpus in the most troubled parts of the state.
Grant's proclamation ordering martial law and suspending the writ of habeas corpus in nine counties of the South Carolina upcountry came on October 12, but when Akerman returned to York County on October 10, local Klan leaders had already begun to slink away from the scene. In their absence, more junior participants saw the wisdom of cooperating with authorities in order to avoid being locked up indefinitely under the new federal powers. In one instance, an entire Klan den arrived en masse to surrender. They explained that they had formed a Klan unit only out of fear of retribution if they did not conform to the dominant Ku Kluxers in the neighborhood. According to Louis Post, a Northern attorney who assisted with the Klan prosecutions in South Carolina, the locking up of Klan suspects helped get individual members to "puke," or confess, thereby incriminating others. These suspects hoped their cooperation would gain them some leniency. Still, of the 1,500 suspected South Carolina Klansmen arrested by detectives and U.S. marshals under the leadership of Attorney General Akerman, only 168 were convicted of a crime. But this low percentage belies the actual success of the effort. As many as 2,000 Klansmen were rumored to have fled the state rather than risk arrest, and thus the organization was effectively broken in South Carolina. Several of its leaders were convicted and sent to Northern penitentiaries.
By comparison, in Mississippi, another state hard-hit by Ku Kluxism, 585 convictions were obtained out of 1,100 cases; this larger number may be explained by the fact that the penalties for violation of the Enforcement Acts in Mississippi, which was not under martial law, were milder, so it was easier to compel whites to testify about Klan activity, although convincing black witnesses to do so remained difficult. A greater challenge to federal law officers lay in the state's frontier character. Arresting suspects in remote Mississippi villages where the Klan had extensive support was not easy, for the local telegraph office was frequently in Democratic hands, and "spotters" and other busybodies quickly passed the word along when federal marshals approached. Even when arrests were made, marshals often had to transport their prisoners back to the nearest railhead under threats and catcalls from local residents, suggesting that an imminent assault would be staged to free the men in custody. Death threats were common; one U.S. attorney in Mississippi was poisoned (he recovered), one was killed by a sniper firing into his kitchen window, and another was shot to death while he slept in a hotel room; several others were arrested by local law enforcers. In some places federal soldiers could back up the marshals in making arrests, but often infantry troops, rather than cavalry, were available and thus of limited effectiveness because of their lack of mobility. The growing conflict with the Indians in the western territories meant that fewer mounted units were posted in the South.
One quick-thinking U.S. attorney in Mississippi had the presence of mind to photograph several ca
ptured Klansmen in their disguises. He passed the images along to Congress and to Harper's Weekly, which published them not once but twice in 1872, remarking that "these lawless disturbers of the South ... are not always so elaborate in their brigand toilet. A white blanket or sheet thrown over the head, with holes for the eyes, is usually sufficient." The photographs were significant because they showed the whole nation, at long last, that the Klan actually existed and was not, as often alleged by Southerners, a "figment of the Northern imagination." In the North, Louis Post lamented, "The general disposition ... was to assign the Ku Klux Klan to the category of horseplay," and as late as December 1871 one New York newspaper was convinced that most Klan outrages were nothing more than "personal quarrels." Harper's, however, assured its readers that "these outlaws will speedily be taught that the government will protect peaceable citizens in the full enjoyment of their rights, life, and property, if it takes the whole military power of the nation to do it."
