A Just and Lasting Peace: A Documentary History of Reconstruction (48 page)

(April 20, 1871)

The third Enforcement Act, often termed the Ku Klux Act, declared terrorist groups like the Klan illegal and empowered the president to suspend the writ of habeas corpus in areas under Klan influence. The most sweeping of the Enforcement Acts, this legislation enumerated crimes, including conspiracies to deprive citizens of suffrage, holding office, serving on juries, and enjoying equal protection of the law as punishable under federal law if state law failed to do so. Significantly, this act made private criminal acts the province of the federal courts. According to one historian, the act “pushed Republicans to the outer limits of constitutional change.”

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
That any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress; such proceeding to be prosecuted in the several district or circuit courts of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases in such courts, under the provisions of the act of the ninth of April, eighteen hundred and sixty-six, entitled “An act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication”; and the other remedial laws of the United States which are in their nature applicable in such cases.

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. 2. That if two or more persons within any State or Territory of the United States shall conspire together to overthrow, or to put down, or to destroy by force the government of the United States, or to levy war against the United States, or to oppose by force the authority of the government of the United States, or by force, intimidation, or threat to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, or by force, intimidation, or threat to prevent any person from accepting or holding any office or trust or place of confidence under the United States, or from discharging the duties thereof, or by force, intimidation, or threat to induce any officer of the United States to leave any State, district, or place where his duties as such officer might lawfully be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or to injure his person while engaged in the lawful discharge of the duties of his office, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duty, or by force, intimidation, or threat to deter any party or witness in any court of the United States from attending such court, or from testifying in any matter pending in such court fully, freely, and truthfully, or to injure any such party or witness in his person or property on account of his having so attended or testified, or by force, intimidation, or threat to influence the verdict, presentment, or indictment, of any juror or grand juror in any court of the United States, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or on account of his being or having been such juror, or shall conspire together, or go in disguise upon the public highway or upon the premises of another for the purpose, either directly or indirectly, of depriving any person or any class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws, or for the purpose of preventing or hindering the constituted authorities of any State from giving or securing to all persons within such State the equal protection of the laws, or shall conspire together for the purpose of in any manner impeding, hindering, obstructing, or defeating the due course of justice in any State or Territory, with intent to deny to any citizen of the United States the due and equal protection of the laws, or to injure any person in his person or his property for lawfully enforcing the right of any person or class of persons to the equal protection of the laws, or by force, intimidation, or threat to prevent any citizen of the United States lawfully entitled to vote from giving his support or advocacy in a lawful manner towards or in favor of the election of any lawfully qualified person as an elector of President or Vice-President of the United States, or as a member of the Congress of the United States, or to injure any such citizen in his person or property on account of such support or advocacy, each and every person so offending shall be deemed guilty of a high crime, and, upon conviction thereof in any district or circuit court of the United States or district or supreme court of any Territory of the United States having jurisdiction of similar offences, shall be punished by a fine not less than five hundred nor more than five thousand dollars, or by imprisonment, with or without hard labor, as the court may determine, for a period of not less than six months nor more than six years, as the court may determine, or by both such fine and imprisonment as the court shall determine. And if any one or more persons engaged in any such conspiracy shall do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby any person shall be injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the person so injured or deprived of such rights and privileges may have and maintain an action for the recovery of damages occasioned by such injury or deprivation of rights and privileges against any one or more of the persons engaged in such conspiracy, such action to be prosecuted in the proper district or circuit court of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases in such courts under the provisions of the act of April ninth, eighteen hundred and sixty-six, entitled “An act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication.”

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. 3. That in all cases where insurrection, domestic violence, unlawful combinations, or conspiracies in any State shall so obstruct or hinder the execution of the laws thereof, and of the United States, as to deprive any portion or class of the people of such State of any of the rights, privileges, or immunities, or protection, named in the Constitution and secured by this act, and the constituted authorities of such State shall either be unable to protect, or shall, from any cause, fail in or refuse protection of the people in such rights, such facts shall be deemed a denial by such State of the equal protection of the laws to which they are entitled under the Constitution of the United States; and in all such cases, or whenever any such insurrection, violence, unlawful combination, or conspiracy shall oppose or obstruct the laws of the United States or the due execution thereof, or impede or obstruct the due course of justice under the same, it shall be lawful for the President, and it shall be his duty to take such measures, by the employment of the militia or the land and naval forces of the United States, or of either, or by other means, as he may deem necessary for the suppression of such insurrection, domestic violence, or combinations; and any person who shall be arrested under the provisions of this and the preceding section shall be delivered to the marshal of the proper district, to be dealt with according to law.

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. 4. That whenever in any State or part of a State the unlawful combinations named in the preceding section of this act shall be organized and armed, and so numerous and powerful as to be able, by violence, to either overthrow or set at defiance the constituted authorities of such State, and of the United States within such State, or when the constituted authorities are in complicity with, or shall connive at the unlawful purposes of, such powerful and armed combinations; and whenever, by reason of either or all of the causes aforesaid, the conviction of such offenders and the preservation of the public safety shall become in such district impracticable, in every such case such combinations shall be deemed a rebellion against the government of the United States, and during the continuance of such rebellion, and within the limits of the district which shall be so under the sway thereof, such limits to be prescribed by proclamation, it shall be lawful for 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, to the end that such rebellion may be overthrown:
Provided,
That all the provisions of the second section of an act entitled “An act relating to habeas corpus, and regulating judicial proceedings in certain cases,” approved March third, eighteen hundred and sixty-three, which relate to the discharge of prisoners other than prisoners of war, and to the penalty for refusing to obey the order of the court, shall be in full force so far as the same are applicable to the provisions of this section:
Provided further,
That the President shall first have made proclamation, as now provided by law, commanding such insurgents to disperse:
And provided also,
That the provisions of this section shall not be in force after the end of the next regular session of Congress.

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. 5. That no person shall be a grand or petit juror in any court of the United States upon any inquiry, hearing, or trial of any suit, proceeding, or prosecution based upon or arising under the provisions of this act who shall, in the judgment of the court, be in complicity with any such combination or conspiracy; and every such juror shall, before entering upon any such inquiry, hearing, or trial, take and subscribe an oath in open court that he has never, directly or indirectly, counselled, advised, or voluntarily aided any such combination or conspiracy; and each and every person who shall take this oath, and shall therein swear falsely, shall be guilty of perjury, and shall be subject to the pains and penalties declared against that crime, and the first section of the act entitled “An act defining additional causes of challenge and prescribing an additional oath for grand and petit jurors in the United States courts,” approved June seventeenth, eighteen hundred and sixty-two, be, and the same is hereby, repealed.

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. 6. That any person or persons, having knowledge that any of the wrongs conspired to be done and mentioned in the second section of this act are about to be committed, and having power to prevent or aid in preventing the same, shall neglect or refuse so to do, and such wrongful act shall be committed, such person or persons shall be liable to the person injured, or his legal representatives, for all damages caused by any such wrongful act which such first-named person or persons by reasonable diligence could have prevented; and such damages may be recovered in an action on the case in the proper circuit court of the United States, and any number of persons guilty of such wrongful neglect or refusal may be joined as defendants in such action:
Provided,
That such action shall be commenced within one year after such cause of action shall have accrued; and if the death of any person shall be caused by any such wrongful act and neglect, the legal representatives of such deceased person shall have such action therefor, and may recover not exceeding five thousand dollars damages therein, for the benefit of the widow of such deceased person, if any there be, or if there be no widow, for the benefit of the next of kin of such deceased person.

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. 7. That nothing herein contained shall be construed to supersede or repeal any former act or law except so far as the same may be repugnant thereto; and any offences heretofore committed against the tenor of any former act shall be prosecuted, and any proceeding already commenced for the prosecution thereof shall be continued and completed, the same as if this act had not been passed, except so far as the provisions of this act may go to sustain and validate such proceedings.

R
ECONSTRUCTION'S
E
ND AND
L
EGACY

Historians usually identify 1877, the year when the last federal troops left the South, as the official end of Reconstruction. However, interest in Reconstruction, especially concern for and a commitment to black freedom, began to wane for most Northerners even before the mid-1870s. Journalist Nicholas Lemann states correctly that even though the Reconstruction Acts of 1867 had made ratification of the Fourteenth Amendment a precondition for readmission to the Union, “it required the presence of the U.S. Army in the South to give the Fourteenth Amendment the force of law. As soon as the federal government stopped using troops as enforcers, in the mid-eighteen-seventies, the Southern states ignored the Fourteenth Amendment, and continued to do so for nearly a century.”
36

In May 1872, Congress passed the General Amnesty Act, removing political disabilities imposed by section 3 of the Fourteenth Amendment. A month later, it abolished the Freedmen's Bureau. In July 1874, the Freedman's Savings Bank, established to provide the freedpeople with basic banking facilities and to promote saving money, shut its doors. The Panic of 1873 and local concerns, not the rights of African-American Southerners, preoccupied most Northerners. To a significant degree, by the early 1870s, Americans had lost interest in Reconstruction. They tried to put the Civil War behind them and look forward.

The burning embers of sectionalism and race hatred, however, remained dimly lit during Reconstruction. Racial violence ran through the Reconstruction era like a leitmotif, peaking during the 1870s when race riots at Meridian, Mississippi (1871), Colfax, Louisiana (1873), Vicksburg, Mississippi (1874), New Orleans and Coushatta, Louisiana (1874), Yazoo City and Clinton, Mississippi (1875), and Hamburg and Ellenton, South Carolina (1876), marred the Southern landscape. The Enforcement Acts had proven insufficient to protect the freedpeople from whites determined to retain racial control over them.

For years Radical Republican senator Charles Sumner had attempted to push through Congress a federal statute protecting the civil rights of blacks, specifically the granting of equal access to public facilities to persons of all races. Following Sumner's death in March 1874, his bill found champions in Senator Frederick T. Frelinghuysen of New Jersey and Massachusetts representative Benjamin F. Butler. The Civil Rights Act of 1875 finally came to pass in February of that year. This last major piece of Reconstruction era legislation aimed to protect the freedpeople in public venues. It mandated nondiscriminatory accommodations in inns, public conveyances, and theaters, prohibited jury discrimination based on race, and declared all racial discrimination cases the purview of the federal courts. The bill was one of the most controversial Congressional bills of its day because, its critics asserted, it legislated social equality. After less than a decade, in 1883, the U.S. Supreme Court declared the equal-accommodations sections of the 1875 Civil Rights Act unconstitutional. In its decision in the
Civil Rights Cases
(1883), the court held that the Thirteenth and Fourteenth Amendments regulated state, not private, actions and further denied that discrimination in public settings stemmed from slavery. Congress, the court insisted, held power to correct instances of state discrimination after they had occurred, but had no mandate to prevent such actions from occurring. In his famous lone dissent, Justice John Marshall Harlan (1833–1911) argued that the freedpeople continued to suffer from the “badges of slavery and servitude” and that Congress had fashioned the Thirteenth and Fourteenth Amendments to eradicate discrimination in private and public contexts.

With all branches of the federal government increasingly uninterested in the plight of the freedpeople, white Southerners in the 1870s and afterward looked for ways to construct an economic modus operandi with Northern capitalists, all the while retaining racial control at home. Though blacks acquired capital, formed communities, continued to vote, and held seats in state and local governments until late in the century, whites contrived to fashion new forms of controlling them.
37
These included, according to Foner, “exclusion from juries, severe punishment for trifling crimes, the continued apprenticeship of their children against parental wishes, and a general inability to obtain justice.”
38
In spite of the Fifteenth Amendment, white Southerners found ways to discourage blacks from voting by implementing residency requirements, discriminatory poll taxes, literacy tests, and so-called Grandfather clauses. When these tactics fell short, whites employed brute force.

The economic collapse of 1873, the loss of Republican interest in and support for remaking the South, the continued racial violence in the South, the systematic overthrow of Radical governments in the South after 1869, and the landslide victory of Democrats in the 1874 Congressional elections (“the greatest reversal of partisan alignments in the entire nineteenth century,” Foner writes) marked the beginning of the end for America's Reconstruction experiment.
39
By the summer of 1876, only three states—Florida, Louisiana, and South Carolina—remained under Radical control. The results of the controversial presidential election of 1876 signaled Reconstruction's end.

That famous campaign, pitting the Ohio Republican Rutherford B. Hayes against the New York Democrat Samuel J. Tilden, ended inconclusively with Hayes twenty electoral votes shy of the 185 necessary for election and election returns in four states contested between the two parties. To resolve the dilemma, Congress appointed a bipartisan Electoral Commission that declared Hayes the victor. An informal arrangement between Southern Democrats and Hayes's supporters resolved the deadlock. The so-called Compromise of 1877 smoothed the way for Hayes to assume the presidency in exchange for economic and political concessions to the South, including the removal of the remaining federal troops from the region, the appointment of a Southerner to Hayes's cabinet, and the general awarding of “Home Rule” to the former Confederate states. White Southerners' much-anticipated period of “Redemption” had arrived. Reconstruction was over, a circumstance, according to historian Steven Hahn, that “ushered in a new era of state-organized violence in defense of private property and respectable property holders at all levels of government.”
40

Unquestionably, Reconstruction marked one of the great turning points in American history. “Never as radical as has been charged,” explains historian Hans L. Trefousse, “it nevertheless represented a real effort to enforce equal rights by federal legislation.”
41
Over a century ago, another historian, William Garrott Brown, wrote that the withdrawal of federal troops from the South in 1877 occasioned “a turning of the current of affairs into a new channel, as clearly marked as any to be found in our history since the revolution.” Whereas General Robert E. Lee's surrender at Appomattox had signified the Confederacy's death and slavery's end, in 1877 the nation “reached the end of the entire prior period during which American political history was mainly an affair of North and South.”
42
As Trefousse observed, Reconstruction's demise also signaled a shift from the diminution of power of the Executive branch in the years following Lincoln's assassination to the assertion of the power of the presidency in the early twentieth century.
43

The saga of Reconstruction included many causes won and lost. Had Lincoln's quest for “a just, and a lasting peace” been attained? Absolutely not. The South's post-1870s “Redemption” by so-called Bourbon Democrats led to the era of Jim Crow, what Hahn terms “a post-emancipation regime of domination and subordination.”
44
Recently historian Stephen Kantrowitz observed that among Reconstruction's “most important political developments were the virtual revolution in Southern life, the consolidation of national citizenship, and the forces that arose to limit those projects.”
45
To be sure, by 1877, the nation had reunited, but serious questions pertaining to free labor, civil and states' rights, and racial inequality remained unanswered. These became Reconstruction's complex legacy. Issues of liberty and equal rights continued to plague the U.S. until the Second Reconstruction of the 1960s.