In 1871, the Ku Klux Klan in South Carolina embarked on one of the worst campaigns of domestic terrorism in American history. The group employed vicious assaults, rape, and murder to trample on the political rights of African Americans and attempt to oust the state’s Reconstruction government. In response to this explosion of political and racial violence, the federal government engaged in a sustained effort to bring the perpetrators to justice. This effort met with some success, resulting in a high conviction rate, although some of the most powerful Klan members were able to escape justice. The Klan trials, while achieving the immediate aim of halting the violence, turned out to be something of a hollow victory. The court’s legal decisions rejected the prosecution’s attempt to establish durable protection for the rights of African Americans through a broad interpretation of the Fourteenth and Fifteenth Amendments.   

The Klan violence stemmed from the state election of 1870, the first held after the ratification of the Fifteenth Amendment. African Americans voted in large numbers, enabling Republicans to dominate the election. As a result, most of South Carolina’s white population viewed the new state government as illegitimate. Republican governor Robert K. Scott angered whites further by organizing armed black militia companies with the goal of protecting black political rights. Many white citizens claimed to feel threatened by the sight of African Americans—who had been denied the right to own firearms under the slave regime—drilling with their rifles in public. Asserting that they had no recourse but to wrest back political control by force, white men of all social classes joined the Ku Klux Klan in large numbers with the goal of ensuring that Democrats would defeat the “Radical ticket” in 1872 and thereafter. Beginning in 1871, the Klan imposed a reign of terror on the South Carolina upcountry, an area of the state more racially mixed than the heavily African-American low country.

The process by which Democrats reclaimed power by ousting Reconstruction state governments throughout the South and establishing white supremacist rule in their place, called “redemption” by its advocates, was accomplished in large part by violence against African Americans and white Republicans. As they did elsewhere in the South, Klan members in South Carolina used “night riding” as the primary means of attaining their aims. Under cover of darkness and with the anonymity provided by their disguises, groups of armed men on horseback marauded through the countryside, raiding the homes of suspected Republican supporters. Although some victims were white Republicans, African Americans were subjected to the most severe violence. The most common form of assault was whipping, but the raiders also engaged in brutal beatings, rape, and murder by hanging or shooting. Women and children were not spared from the violence, particularly if a man who was the target of a raid could not be found. Adult male victims were forced to renounce their support for the Republicans and promise to cease any political activity on their behalf.

Alarmed by reports of the violence in South Carolina, President Ulysses S. Grant sent troops to the area with orders to arrest the perpetrators. The soldiers were hindered in finding the suspects, however, by the recalcitrance of the white population, including local law enforcement. Realizing that more robust federal authority was needed, Grant declared the upcountry counties to be in a state of rebellion and suspended the writ of habeas corpus throughout the area in October 1871. This measure enabled federal troops to cast a wide net in apprehending those believed to be responsible for the attacks. Without the normal constraints of due process, the troops made mass arrests, detaining more than 600 men by the end of 1871.

The arrestees were indicted in the U.S. Circuit Court for the District of South Carolina by a majority African-American grand jury. Many white citizens did not respond to their jury notices, possibly because the Ku Klux Klan Act of 1871 required all jurors to swear an oath, under penalty of perjury, that they had never aided a conspiracy to violate civil rights, thereby making many white South Carolinians and most Klan members ineligible.

The defendants were charged under two federal statutes. Most charges were brought under the Enforcement Act of 1870. The Act was intended to enforce the Fifteenth Amendment, which prohibited the states from denying the franchise based on “race, color, or previous condition of servitude.” Three sections of the Enforcement Act were in play in the South Carolina trials. Section five provided criminal penalties for the use of violence or intimidation to prevent African Americans from voting. Section six contained a prohibition “to go in disguise upon the public highway or upon the premises of another” with the intent “to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States.” Section seven provided that if ordinary crimes, such as burglary or assault, were committed in the course of violating sections five or six, offenders could be punished as if they had been convicted of those crimes in state court.

The second statute, the Ku Klux Klan Act of 1871, was designed to enforce the Fourteenth Amendment. Section two of the Act made it a federal crime to deprive a person of the equal protection of the laws or of equal privileges or immunities under the laws, as well as to use violence or intimidation against a qualified voter for having supported a lawful candidate in a federal election. This act played a lesser role in the South Carolina trials; because it had become law only months before, many of the crimes at issue predated its enactment. 

The prosecutors, District Attorney David Corbin and his co-counsel, South Carolina Attorney General Daniel Chamberlain, had two distinct goals: to obtain as many convictions as possible, and to establish a broad conception of the rights protected by the Fourteenth and Fifteenth Amendments to ensure durable protection of black political rights from Klan violence. Conversely, defense attorneys Reverdy Johnson and Henry Stanbery—prominent constitutional lawyers and former attorneys general of the United States—while ostensibly trying to win acquittals for the defendants, were primarily focused on limiting the scope of federal civil rights laws. In their view, the ideal outcome would be a ruling that the laws were unconstitutional.

Corbin and Chamberlain, with the blessing of U.S. Attorney General Amos Akerman, hoped to establish that the Due Process Clause of the Fourteenth Amendment had nationalized the Bill of Rights, making it applicable to the states. Under this theory, by entering and ransacking homes and by seizing weapons, the defendants had violated their victims’ Second and Fourth Amendment rights. Because it did not depend on Fifteenth Amendment rights, this strategy also provided the government with a way to protect women and children, who could not vote.

An important potential roadblock for the prosecution was that the literal terms of the Fourteenth and Fifteenth Amendments referred to the actions of state governments, while the accused Klan members were private citizens. Corbin and Chamberlain wanted to establish that those amendments had nevertheless conferred positive rights on the American people, thereby authorizing Congress to punish individuals for civil rights violations. Corbin and others believed that civil rights charges could be filed without the presence of state action. In court, however, he took a more conservative position, arguing that state inaction, i.e., the state’s failure to enforce Fourteenth and Fifteenth Amendment rights, was a form of state action that triggered the federal government’s authority to prosecute. If the state refused to act, the prosecution asserted, the federal government was empowered to invoke the Enforcement and Ku Klux Klan Acts, which were predicated on its authority to enforce the amendments. 

Judges George Seabrook Bryan of the U.S. District Court for the District of South Carolina and Hugh Lennox Bond of the U.S. Circuit Courts for the Fourth Circuit (which encompassed Maryland, Virginia, West Virginia, North Carolina, and South Carolina) presided together over the trials. Bryan, a South Carolina native and a Democrat, was appointed by Andrew Johnson in 1866 to be South Carolina’s first federal judge after the Civil War. A former slaveholder, and a strong advocate for states’ rights (although he had opposed secession), he ruled against federal interference in state and local affairs whenever possible in the formative years of Reconstruction.

Bond, by contrast, was against slavery and helped to found Maryland’s Republican Party after the war, serving as the party’s candidate for governor in 1866. From 1860 to 1867 he was a judge of the Baltimore City Criminal Court, where he issued rulings freeing African American children who had been involuntarily apprenticed to planters under a pre-emancipation state law. Bond was also extremely active in the Baltimore Association for the Moral and Educational Improvement of Colored People, which raised money and built schools for African American children in Maryland, whose educational needs the legislature mostly ignored.

Despite his actions on behalf of African Americans, Bond held the racist views common even among abolitionists. While Bond advocated for equal political rights for African Americans, including the right of suffrage, he believed whites to be superior and felt that they alone should constitute the top tier of society. In his view, affording everyone equal opportunity regardless of race would elevate the circumstances of African Americans without disturbing the country’s racial hierarchy. Even Bond’s limited notion of equality went too far for many of his fellow Maryland Republicans. He attempted to lead a radical faction out of the party in 1868 but found little support.

Bond’s political views made him unpopular among whites in his native state but helped him secure his appointment to the federal bench from President Grant. He was appointed in 1870, a year after Congress expanded the judiciary, in part to bolster civil rights enforcement. The Judiciary Act of 1869 authorized separate judgeships dedicated to the circuit courts, which from 1789 to 1801 and again from 1802 to 1869 were held only by U.S. district judges and justices of the Supreme Court.

When he arrived in South Carolina to preside over the Ku Klux Klan trials, Bond was grimly determined to see the Klan brought to justice but concerned that his judicial colleague Bryan would stand in the way. The Democrats, Bond wrote to his wife, had “stuffed him full of the idea that [they] will make him Gov[ernor] if he differ with me.” Seeking to keep Bryan in line, Bond admonished him sternly, telling the judge that “he had better not keep the court sitting doing nothing but posing about the smallest matter in the world day after day.” Perhaps unsurprisingly, the two jurists were not fond of one another.

The circuit court convened in Columbia, South Carolina, in late November 1871. As was the case with the grand jury, the petit juries that heard each of the cases were majority African-American, both because federal jurors were drawn from the entire state, which had a large black population, and because of the aforementioned reluctance of many whites to serve. There were a huge number of defendants, so the government adopted a strategy of selective prosecution. The prosecutors had hoped to focus on trying Klan leaders, typically wealthy and influential men (often former Confederate military officers) who had induced others to join the group. Of lower priority were poorer and uneducated defendants, many of whom had been coerced into joining the Klan by threats to their safety or livelihood. The government’s strategy was largely thwarted, however, as many Klan leaders fled South Carolina after learning of Grant’s proclamation suspending habeas corpus. As a result, the government’s highest-value targets generally escaped justice. The prosecutors instead prioritized the highest-status members who were captured as well as those who had committed the worst atrocities. Many of the men who had joined the Klan under duress pleaded guilty and informed on their fellow members, helping the government to build its cases. During the November 1871 term of court, the prosecutors secured 49 guilty pleas.

The court tried four cases at its November term, resulting in five convictions. The first case the government intended to try, United States v. Crosby, did not go to trial but helped to set the stage for the others. The indictment in that case contained eleven counts against seven named defendants. One count brought under section five of the Enforcement Act alleged that the defendants attempted to control one man, Amzi Rainey, in exercising his right of suffrage. Several of the counts alleged conspiracies under section six of the Act. The first was a conspiracy to deny suffrage to African American men in violation of section one of the Act, which provided that otherwise qualified voters were entitled to vote without regard to racial distinctions. The others were conspiracies to deprive Rainey of his right of suffrage, to injure Rainey because of his free exercise of suffrage, and to violate Rainey’s Fourth Amendment right to be free of unreasonable searches and seizures.

Other counts repeated the previous allegations and added a charge of burglary, seeking to invoke section seven of the Act, which authorized the imposition of state-law penalties for crimes committed in the course of civil rights violations. The final three counts were brought under section two of the Ku Klux Klan Act, alleging conspiracies to deny Rainey the equal protection of the laws, to deny him equal privileges and immunities, and to injure him because he had voted for a particular congressional candidate.

The defense moved to quash the entire indictment, requiring the court to address several legal issues surrounding the prosecutions. Judges Bond and Bryan largely agreed on the validity of the counts in the indictment. In an opinion written by Bond, the court upheld two counts: the conspiracy to deny the right of suffrage to African Americans, and the conspiracy to injure Rainey for having supported a lawful candidate for federal office. The judges did not accept the prosecution’s arguments that the Fourteenth and Fifteenth Amendments had created positive rights. The court dismissed several counts on the ground that they alleged incorrectly that suffrage was a right secured by the Constitution. “The right of a citizen to vote depends upon the laws of the state in which he resides,” wrote Bond, “and is not granted to him by the constitution of the United States.”

The count alleging a conspiracy to violate Rainey’s Fourth Amendment rights also failed, as the court declined to accept the prosecution’s theory that the Fourteenth Amendment had made the Bill of Rights applicable to the states. The Fourth Amendment, wrote Bond, had long been recognized as a restriction on the federal government only. Bond added that the right to be free of unreasonable searches and seizures had existed at common law and thus did not originate in the Constitution. Because the right was not one granted or secured by the Constitution, he held, it fell outside the scope of the Enforcement Act.

Johnson and Stanbery had hoped to obtain a division of opinion between Bond and Bryan on some of the more important issues. If the judges disagreed on a point of law, the question could be certified to the Supreme Court for a binding decision. This provided a potential avenue to invalidate the civil rights statutes. Bond and Bryan differed only on the counts that included burglary, however. Bryan believed that the federal court lacked jurisdiction over allegations that included a state-law crime, while Bond was willing to recognize such jurisdiction.

Counsel on both sides felt the burglary issue on which the judges had divided was not worth certifying to the Supreme Court because those counts of the indictment would have failed for other reasons. Instead, the defendants pled guilty to the remaining counts, and the lawyers agreed to ask the court to send up two issues in a murder case against Klan leader James W. Avery—first, whether an ordinary state crime could be used to determine the punishment for a civil rights violation, and second, whether the government could bring civil rights charges for violations of Second Amendment rights. The Supreme Court, however, declined to address these issues in the context of a preliminary motion over which the trial court had substantial discretion. With no definitive ruling on charging state law crimes under section seven of the Enforcement Act, the prosecution put off trying murder cases at the November term and instead stuck to bringing conspiracy charges involving voting rights in the mold of the count upheld in Crosby.

The trials themselves were dramatic spectacles, as the government called witness after witness to testify in detail to the Klan’s atrocities. Testimony came from victims and their family members as well as from Klan members who had participated in the attacks and agreed to testify in exchange for lighter sentences. The graphic testimony went far beyond what was needed to convict the defendants, but it served an additional purpose—to draw national attention to the trials so that there could be no doubt about the threat to democracy the Klan posed in the South.

The four trials held between November 1871 and January 1872 produced five convictions for various conspiracies relating to voting rights. Sentences varied widely depending on the status of the defendants and the heinousness of the acts done in furtherance of the conspiracies, with the maximum penalty given being five years in prison and a fine of $1,000. The last man tried was Edward T. Avery, a wealthy and influential member of the community. When his conviction appeared inevitable, he jumped bail and fled. He was quickly convicted in absentia but was never sentenced, and the case against him was discontinued in 1874.

At the court’s April term, the prosecutors decided to push forward with murder charges in hopes of convicting the worst offenders and obtaining a ruling on the constitutionality of charging state-law crimes in federal civil rights cases. Some defendants pled guilty to conspiracy in exchange for having murder charges dropped. The spring trials resulted in convictions of all eighteen men tried for conspiracy—but only one murder conviction—and eighteen guilty pleas. Some of the defendants were sentenced to the statutory maximum of ten years in prison and a $1,000 fine even without a murder conviction. State-law penalties, which included hanging, were not imposed, as the constitutionality of doing so was still unclear. A few more trials were held in November 1872, after which Bond, having tired of the endeavor, declined to return to South Carolina for a special session to try more of them. District Attorney Corbin began to issue writs of nolle prosequi, or discontinuation of prosecution, on some of the 1,188 cases remaining on the docket, while other prosecutions were postponed.

Although the court tried relatively few cases, the Klan prosecutions dealt a powerful blow to the organization, stopped its campaign of terror, and ensured a fair election in 1872. Crucially, the federal government had demonstrated its resolve to enforce the civil rights of African Americans. The peace was short-lived, however. Blyew v. United States (1871) made getting convictions substantially more difficult when the Supreme Court upheld a Kentucky state law excluding African Americans from testifying against whites. The Court ruled that black victims of and witnesses to white violence were not “affected” by the case—which was solely between the government and the white defendants—and thus did not have the right to give evidence in federal court under the Civil Rights Act of 1866. In 1873, Attorney General George H. Williams, who replaced Akerman in December 1871, decided to curtail civil rights enforcement, citing the high cost as well as the growing perception among whites in all sections of the country that the federal government was interfering excessively with state affairs in the South. Grant concurred, believing that the government had made its point. That summer, the president announced a policy of clemency for those not tried and pardons for those who had been sentenced.

The presence of federal troops permitted a free election in 1874 in which the Republicans maintained power. The election of 1876 was quite a different story, however. Whites used threats and intimidation to inform black South Carolinians that their participation in the state’s electoral politics had come to an end. While raids on homes did not resume, several “race riots” took place in which groups of whites, claiming to have been provoked by African-American militias, attacked blacks in public, killing many of them. Despite these tactics, the gubernatorial election was close, with Democrat Wade Hampton winning by approximately 1,100 votes. Both parties claimed victory and inaugurated their candidates. The situation was not resolved until President Rutherford B. Hayes dispersed federal troops from the areas they were occupying in the South as part of the resolution of the contested election that put him in office. The absence of troops guarding the statehouse allowed Democrats to take control of the building, establishing openly white supremacist rule and effectively finishing the Republican Party in South Carolina. 

In the years after the South Carolina trials, the Supreme Court issued several decisions construing the Fourteenth and Fifteenth Amendments narrowly and hampering federal enforcement of black civil rights. In the Slaughterhouse Cases (1873), the Court construed the Privileges and Immunities Clause of the Fourteenth Amendment narrowly, holding that the clause protected only the very few rights pertaining to national citizenship, such as the right to government protection or to possess property. The vast majority of rights pertained to state citizenship, the Court held, and thus could be protected only by the states. In United States v. Reese (1875), the Court ruled, as Bond and Bryan had, that the Fifteenth Amendment did not establish an affirmative right to vote and struck down two sections of the Enforcement Act that did not specifically mention race. The Court’s decision in United States v. Cruikshank (1876) also read the Fourteenth Amendment narrowly, confirming Bond’s and Bryan’s view that the amendment had not made the Bill of Rights applicable to the states. The case arose from the Colfax Massacre of 1873, in which perhaps as many as 150 African American men were murdered by whites in Louisiana. The Court affirmed the dismissal of all charges, including that the defendants had violated the Enforcement Act by conspiring to deprive the victims of their First and Second Amendment rights to assemble and to bear arms. Thus, the expansive vision of civil rights enforcement the prosecution had advanced in South Carolina did not come to fruition.

Despite these significant legal setbacks, the government continued to bring voting rights cases over the next several years, though convictions were rare. Although the Supreme Court in Reese rejected the argument that the Fifteenth Amendment created a right to vote, it acknowledged that it had established “a new constitutional right that is within the protecting power of Congress”: the right of African Americans to vote on the same terms as whites, free of racial discrimination. Similarly, in his 1874 circuit court opinion in Cruikshank, Justice Joseph Bradley asserted that the federal protection of voting rights did not require state action. “Congress has the power to secure that right not only as against the unfriendly operation of state laws, but against outrage, violence, and combinations on the part of individuals, irrespective of state laws” he wrote. In Ex parte Yarbrough (1884), the Court upheld voting rights convictions of Klan members under the Enforcement and Ku Klux Klan Acts. While the Court took note of Reese’s formulation of Fifteenth Amendment rights, it did not rely upon it, finding those acts to be valid exercises of congressional power under the Necessary and Proper Clause. It would be “a waste of time to seek for specific sources of power to pass these laws,” wrote Justice Samuel Miller, because free federal elections were essential to the organization and successful operation of the government itself. Although the Court left the door open for voting rights prosecutions in the South, they came to an end when Democrat Grover Cleveland assumed the presidency in 1885. 

Although they took place during a time when the Fourteenth and Fifteenth Amendments were in their infancy and the means of enforcing them uncertain, the South Carolina Ku Klux Klan trials of 1871–1872 stand as monuments to what the federal government might have accomplished had it persisted with aggressive civil rights enforcement in the South. For a brief time, Klan violence was halted as the organization’s members fled or were arrested. The prosecutors secured convictions or guilty pleas in nearly all cases they pursued. The vision of what could have been was quickly snuffed out, however, not only by losses in court but also by a lack of will on the part of federal officials, who grew weary of southern occupation and the difficulties of protecting black civil rights. Tragically, white supremacists in the South were permitted to complete the task of “redeeming” their state governments and the promise of democracy for African Americans was lost for generations to come. 

Jake Kobrick, Associate Historian
For more information, contact history@fjc.gov

Related FJC Resources:
Hugh Lennox Bond and George Seabrook Bryan in the Biographical Directory of Article III Federal Judges, 1789-present.

Further Reading:
Brandwein, Pamela. “A Lost Jurisprudence of the Reconstruction Amendments.” Journal of Supreme Court History 41, no. 3 (Nov. 2016): 329–346.

Fuke, Richard Paul. “Hugh Lennox Bond and Radical Republican Ideology.” Journal of Southern History 45, no. 4 (Nov. 1979): 569–586.

Hall, Kermit L. “Political Power and Constitutional Legitimacy: The South Carolina Ku Klux Klan Trials, 1871–1872.” Emory Law Journal 33, no. 4 (Fall 1984): 921–952.

Kaczorowski, Robert J. “Federal Enforcement of Civil Rights During the First Reconstruction.” Fordham Urban Law Journal 23, no. 1 (1995–1996): 155–186.

__________________. The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866–1876. New York: Fordham University Press, 2004.

Proceedings in the Ku Klux Klan Trials at Columbia, S.C. in the United States Circuit Court, November Term, 1871. Columbia, S.C.: Republican Printing Co., 1872.

Williams, Lou Falkner. “The Constitution and the Ku Klux Klan on Trial: Federal Enforcement and Local Resistance in South Carolina, 1871–1872.” Georgia Journal of Southern Legal History 2 (1993): 41–70.

_________________. The Great South Carolina Ku Klux Klan Trials, 1871–1872. Athens: University of Georgia Press, 1996.

This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory mission to “conduct, coordinate, and encourage programs relating to the history of the judicial branch of the United States government.” While the Center regards the content as responsible and valuable, these materials do not reflect policy or recommendations of the Board of the Federal Judicial Center.