Those were the days....

Testimony Taken by the Joint Select Committee to Inquire into the Condition of affairs in the Late Insurrectionary States South Carolina Volume 3 1872

Start Page 1615

Trials at Columbia, South Carolina

Circuit Court of the United States

1871

U.S. Circuit Judge Hon. H.L. Bond of Maryland

U.S. District Judge Hon. George S. Bryan of South Carolina

U.S. District Attorney D.T. Corbin

Solomon L. Hoge, esq., Associate Counsel

Henry Stanberry, Attorney for the defense

Reverdy Johnson, Attorney for the defense

Pg. 1670 -

Mr. Corbin. No sir; the question has not been raised at all--the right to keep and bear arms. There was no such allegation in any indictment before the court.

Judge Bryan. I think not.

Mr. Corbin. You are thinking of unreasonable searches and seizures.

Mr. Stanbery. And you think the right to keep and bear arms is secured by the Constituion?

Mr. Corbin. We do, and propose to fight on it to the last.

Mr. Stanbery. Well, consider a motion made to quash that count.

Mr. Corbin. Well, write out your motion and hand it up.

Mr. Stanbery. If the court please, it is agreed that we make our objection, or a formal motion to quash when we make the objection to the second count of the indictment now presented for trial, on the ground that the allegations of the right to be secure, as the right to bear arms; your honors have held that the right to be secure from searches, and the right to the free enjoyment of all the privileges secured by the Constitution of the United States, do not make any offense under these laws, and the right to bear arms, I suppose, is not secured by the Constitution of the United States, but stands in the nature of a bill of rights. It is a restriction upon Congress against interfering with that right. It is one of the rights of the state.

Most incorrect assertion by Mr, Stanbery, To Wit:

The first 10 amendments had ALREADY been totally "incorporated" on December 15, 1791:

"Congress of the United States;

"Begun and held at the City of New York, on Wednesday, the 4th of March, 1789.

"The conventions of a number of the states having, at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the ground of public confidence in the government will best insure the beneficent ends of its institution;--

"Resolved, by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both houses concurring, that the following articles be proposed to the legislatures of the several states, as amendments to the Constitution of the United States, all or any of which articles, when ratified by three fourths of the said legislatures, to be valid, to all intents and purposes, as part of the said Constitution, namely,-- . . ."

"Art. IV.[Later abridged to II. - Ed. by EDQ]  (The following breakdown of Amendment II by clauses is not contained in the original document - Ed. by EDQ).

"Declaratory" clause:

"A well-regulated militia being necessary to the security of a free state,

“Restrictive” clause:

the right of the people to keep and bear arms shall not be infringed.

http://press-pubs.uchicago.edu/founders/documents/bill_of_rightss12.html

FREDERICK AUGUSTUS MUHLENBERG,

Speaker of the House of Representatives.

JOHN ADAMS, Vice-President of the United States,

and President of the Senate. 

Attest. John Beckley,

Clerk of the House of Representatives.

Samuel A. Otis, Secretary of the Senate.

Which, being transmitted to the several state legislatures, were decided upon by them, according to the following returns:--

By the State of New Hampshire.--Agreed to the whole of the said amendments, except the 2d article.

By the State of New York.--Agreed to the whole of the said amendments, except the 2d article.

By the State of Pennsylvania.--Agreed to the 3d, 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th, and 12th articles of the said amendments.

By the State of Delaware.--Agreed to the whole of the said amendments, except the 1st article.

By the State of Maryland.--Agreed to the whole of the said twelve amendments.

By the State of South Carolina.--Agreed to the whole said twelve amendments.

By the State of North Carolina.--Agreed to the whole of the said twelve amendments.

By the State of Rhode Island and Providence Plantations.--Agreed to the whole of the said twelve articles.

By the State of New Jersey.--Agreed to the whole of the said amendments, except the second article.

By the State of Virginia.--Agreed to the whole of the said twelve articles.

No returns were made by the states of Massachusetts, Connecticut, Georgia, and Kentucky.

The amendments thus proposed became a part of the Constitution, the first and second of them excepted, which were not ratified by a sufficient number of the state legislatures.

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

Mr. Johnson. (Sotto voce.) Tell the court we make point.

Mr. Stanbery. O, of course, that is understood. It is understood that we are to draw the motion in form afterward, but not to take time to draw it now.

Judge Bond. Go on; take your jury, Mr. Corbin. Mr. Clerk, impanel the jury. I understand there is a motion to quash one of the counts.

Mr. Stanbery. The district attorney waived the hearing of the motion now, and gave me the right to make the motion ore tenus. That must be decided before we have the jury sworn.

Mr. Corbin. Go on, if you have anything to say.

Mr. Stanbery. I have stated to the court all I care about. I have said all I intend to say about it.

Mr. Corbin. If the court please, if there is any right that is dear to the citizen, it is the right to keep and bear arms, and it was secured to the citizen of the United States on the adoption of the amendments to the Constitution, had never been held directly to be a restriction, only upon Congress or upon Federal power as against the citizen, but the same argument, probably, which was used by the court in the case of the lessees of somebody against Maryland, that the amendments were intended generally to be a restriction upon the United States Congress, as against the citizen of the United States. In other words, that the citizens were not--the right of the citizen was not--to be encroached upon by Congress in this respect, and that they do not--these amendments did not--apply to the States, But, if the court please, the fourteenth amendment changes all that theory, and lays the same restriction upon the State that before lay upon the Congress of the United States, viz; That as Congress heretofore could not interfere with the right of the citizen to keep and bear arms, now, after the adoption of the fourteenth amendment, the State cannot interfere with the right of the citizen to keep and bear arms. That is included in the fourteenth amendment among the privileges and immunities of the citizen that were not referred to.

As was also concluded by this U.S. Supreme Court Justice:

"...In addition to the original rights secured to him in the first article of amendments, [Fourteenth Amendment] he had secured the free exercise of his religious belief, and freedom of speech and the press. Then he had secured to him the right to keep and bear arms in his defense. Then, after that, his home was secured in time of peace from the presence of a soldier; and,still further, sir, his house, his papers, and his effects were protected against unreasonable seizure...."

"'Though originally the first ten Amendments were adopted as limitations on Federal power, yet in so far as they secure and recognize fundamental rights-common law rights-of the man, they make them privileges and immunities of the man as citizen of the United States, and cannot now be abridged by a State under the Fourteenth Amendment. In other words, while the ten Amendments, as limitations on power, only apply to the Federal government, and not to the States, yet in so far as they declare or recognize rights of persons, these rights are theirs, as citizens of the United States, and the Fourteenth Amendment as to such rights limits state power, as the ten Amendments had limited Federal power..."

- Adamson v. People Of State Of California, U.S. Supreme Court, (Justice Black, Douglas and Swayne in Dissent), June 23, 1947.

It seems to me that there can be no doubt about this. The right to keep and bear arms is a privilege of a citizen of the United States--was before the adoption of the fourteenth amendment. After the adoption of the fourteenth amendment that privilege was extended to the citizens as against State power. Now, the adoption, or, rather, the passage of the act of Congress on the 31st of May, 1870, attempted to secure that right. It said all privileges and immunities, &c.. guaranteed by the Constitution of the United States the State is prohibited to interfere with, and Congress adopted appropriate legislation to that end. It is attempted to punish combinations and conspiracies that have for their object to interfere with the rights of the citizen by the Constitution of the United States. But the distinguished counsel on the other side say this stands on the same footing with the other, because the court have said in this case that the right to be secure from unreasonable searches and seizures was a right to be secure at common law. Consequently, the Constitution of the United States did not secure it--it existed

before. Now, will this court say, will the distinguished counsel pretend to argue to this court, that the right to keep and bear arms was a right secured at common law? Certainly not. Such a thing is allowed in common law nowhere--in common law or modified common law, or anything else.

But this right is a distinctive right secured by the Constitution of the United States, and for the first time in the history of the world, except in the case of the Protestants of England, has it been secured to the citizen. It was secured to a certain class of citizens in England by act of Parliament. That itself is sufficient to negative the presumption, or rather the assumption, of the district attorney, that it was a right secured by common law. But in the Constitution of the United States, and in the amendments to the Constitution, the people, in their wisdom, saw fit to insist that the right should be put in among the amendments to the Constitution, and for the first time it was adopted by the people of the United States, and the right was guaranteed to all the citizens of this country. It was never guaranteed or granted before. I do not, therefore, desire to take up the time of the court to argue this question, for it appears to me to be a question as clear as it is simple, that it is a right guaranteed to the citizens by the Constitution of the United States, as against the Congress of the United States; a right guaranteed to the citizen of the State as against the State by the fourteenth amendment.

Imagine, if you like--but we have not to draw upon the imagination for the facts--a militia company organized in York County, a combination and conspiracy to rod the people of their arms, and to prevent them from keeping and bearingg arms furnished to them by the State government. Is not that a conspiracy to defeat the rights of the citizen secured by the Constitution of the United States and guaranteed by the fourteenth amendment? Is not that right intended to prevent the right secured by this act of April, 1870? If it is not, may it please your honor, then this act means nothing, and we desire to know it at once.

Mr. Johnson. It would have been as well if my brother, the district attorney, when he vindicates the particular legislation under the fourteenth amendment of the Constitution, had read the amendment. I understand him now as broadly admitting that, under the Constitution as it stood. before the fourteenth amendment was adopted, such legislation as this could not have been legally had.

Mr. Corbin. I did not admit that.

Mr. Johnson. I thought you did. I thought you believed it under the fourteenth amendment.

Mr. Corbin. I say that under the fourteenth amendment that right is guaranteed to the

citizen.

Mr. Johnson. I thought he admitted it. Bu whether he did or not, it is perfectly clear that as the Constitution stood antecedent to the fourteenth amendment, such legislation as this would have been invalid as not authorized. Now, I should like to know how the fourteeth amendment changes the power of Congress? Your honors have it before you; it is in the first section of that amendment. My recollection is that it makes every man a citizen who may be born in the United States, without reference to his color, race, or condition; or who may have been naturalized by the United States; and the States are prohibited from taking from him any privilege or immunity thus guaranteed to him. Now what is that? I suppose it is one of the immunities that a citizen of the United States is entitled to, that he shall be protected against seizures and searches for papers. And your honors have decided that the count charging us with conspiracy to defeat that right, is not authorized by the fourteenth amendment.

Once again. Most incorrect:

“...In the Twining case itself, the Court was cited to a then recent book, Guthrie, Fourteenth Amendment to the Constitution (1898). A few pages of that work recited some of the legislative background of the Amendment, emphasizing the speech of Senator Howard. But Guthrie did not emphasize the speeches of Congressman Bingham, nor the part he played in the framing and adoption of the first section of the Fourteenth Amendment. Yet Congress- [Page 332 U.S. 46 , 74] man Bingham may, without extravagance, be called the Madison of the first section of the Fourteenth Amendment. In the Twining opinion the Court explicitly declined to give weight to the historical demonstration that the first section of the Amendment was intended to apply to the states the several protections of the Bill of Rights. It held that that question was 'no longer open' because of previous decisions of this Court which, however, had not appraised the historical evidence on that subject. 211 U. S. at page 98, 29 S.Ct. at page 19. The Court admitted that its action had resulted in giving 'much less effect to the 14th Amendment than some of the public men active in framing it' had intended it to have. 211 U.S. at page 96, 29 S.Ct. at page 18. With particular reference to the guarantee against compelled testimony, the Court stated that 'Much might be said in favor of the view that the privilege was guaranteed against state impairment as a privilege and immunity of national citizenship, but, as has been shown, the decisions of this court have foreclosed that view.' 211 U.S. at page 113, 29 S.Ct. at page 25. Thus the Court declined and again today declines, to appraise the relevant historical evidence of the intended scope of the first section of the Amendment. Instead it relied upon previous cases, none of which had analyzed the evidence showing that one purpose of those who framed, advocated, and adopted the Amendment had been to make the Bill of Rights applicable to the States. None of the cases relied upon by the Court today made such an analysis.

“For this reason, I am attaching to this dissent, an appendix which contains a resume , by no means complete, of the Amendment's history. In my judgment that history conclusively demonstrates that the language of the first section of the Fourteenth Amendment, taken as a whole, was thought by those responsible for its submission to the people, and by those who opposed its submission, sufficiently explicit to guarantee that thereafter no state [Page 332 U.S. 46 , 75] could deprive its citizens of the privileges and protections of the Bill of Rights. Whether this Court ever will, or whether it now should, in the light of past decisions, give full effect to what the Amendment was intended to accomplish is not necessarily essential to a decision here. However that may be, our prior decisions, including Twining, do not prevent our carrying out that purpose, at least to the extent of making applicable to the states, not a mere part, as the Court has, but the full protection of the Fifth Amendment's provision against compelling evidence from an accused to convict him of crime. And I further contend that the 'natural law' formula which the Court uses to reach its conclusion in this case should be abandoned as an incongruous excrescence on our Constitution. I believe that formula to be itself a violation of our Constitution, in that it subtly conveys to courts, at the expense of legislatures, ultimate power over public policies in fields where no specific provision of the Constitution limits legislative power. And my belief seems to be in accord with the views expressed by this Court, at least for the first two decades after the Fourteenth Amendment was adopted.

“In 1872, four years after the Amendment was adopted, the Slaughter- House cases came to this Court. 16 Wall. 36. The Court was not presented in that case with the evidence which showed that the special sponsors of the Amendment in the House and Senate had expressly explained one of its principal purposes to be to change the Constitution as construed in Barron v. Baltimore, supra, and make the Bill of Rights applicable to the states. [Footnote 6] Nor [Page 332 U.S. 46 , 76] was there reason to do so. For the state law under consideration in the Slaughter-House cases was only challenged as one which authorized a monopoly, and the brief for the challenger properly conceded that there was 'no direct constitutional provision against a monopoly.[7] - Adamson v. People Of State Of California, U.S. Supreme Court, (Justice Black, Douglas and Swayne in Dissent), June 23, 1947.

Now, if that right is not authorized by the amendment, upon what ground can counsel for the Government suppose that the right which exists in the citizen to bear arms can be protected by that amendment, for they stand upon the same footing? The latter is no more a right than the former, and if the former, as your honors have held, is a protection only as against the authority of the United States, it necessarily follows that the latter is a protection against the United States, and restriction of their power. In the case of Baron Baltimore, the question, I think, ws whether the Congress of the United States prohibited Maryland, as the parties who were acting under the law of that state, from appropriating private property to public use. Now, if there is any right to be found in that or in any law,

common or uncommon, modified or unmodified, one would suppose it would be the right to enjoy his own property, without the interference of the public, except it should become necessary to take it for the public use, and then only upon full compensation. But the Supreme Court decided unanimously that, although it was a right, and right in its nature, independ of statutory regulation or expresses law, although it was a right, the provisions of the Constitution of the United States, which the counsel in the case never claimed supposed protected him in the enjoyment of that right, did not apply, because these provisions of the Constitution of the United States upon which they relied were provisions restrictive of the power of Congress.

So my brother tells us that the right to bear arms is a right of the citizens. Where did he get the right to bear arms more than to be guaranteed against unlawful searches or against the appropriation of his property to public use without compensation? What does the Constitution of the United States say about bearing arms? Nothing,. What does the fourteenth amendment say upon the same subject? Nothing. The latter is as silent upon the topic as the former, and if the former cause for silence does not cover such as this, the latter, for the same reaon, does not embrace it.

Now my brother imagines a case., which shows that he must give loose to his imagination to support the law. That is a very bad support of the law; for his imagination, and any man's imagination, would generally go beyond the law. He imagines, or supposes, two militia companies are authorized to bear arms, and the arms ar placed in their hands, I suppose, by this government--not by the United States--they had a right, says the learned attorney, to hold on to their arms. So they had, as against the governor or the government. so long as he permitted them to hold them. But suppose the men in whose hands the arms were placed had no more right to bear arms than any of those men in whose hands they refused to place them. Does not the act say that no distinction shall be made on account of race, &c.? Does not that place the white man in a worse situation than the black man? Do they both stand upon the same level? Does Mr. District Attorney say that it would have been in the power of the State government to deny to the white citizens the right to bear arms?

Mr. Corbin. I do say that the State of South Carolina cannot do it.

Mr. Johnson. It has done it. Cannot do it? Why, we would be in a sad condition were it so. A band of ruffians combine together to burn, pillage, and murder all from the cradle to the grave. Indulging in imagination, which according to the district attorney is a fair source of authority, they want arms to protect themselves against the further progress of the outrages. The women and children are alarmed; the governor either refuses to interfere, or seeks to get the arms out of the hands of the militia, but does not succeed. Terror fills the whole region; no man knows when he retires to his rest what may be the fate of his house or that of his wife and children. Has not the State in a case like that the right to take arms from the militia company? I think there can be no doubt of that. And if the right exists to take the arms out of their hands in such a case as that, then it is because the right to bear arms is not a right given by the Constitution of the United States; but exists under the local law of the state.

Why, may it please your honors, there are a thousand rights which may be restrained in part, modified in part, or annulled; but whether they are to be restrained, modified, or annulled, depends upon the inquiry, does the public safety demand it? No. I have proposed that in this particular case, this man who has, by this conspiracy, been denied the right to bear arms, was himself one of the leaders in the acts of violence and in the communication of these threats, which were calculated not only to fill the breast of a brave man with alarm, but to fill the minds of his wife and children with terror, which, if not calmed, might, sooner or later, result in insanity. Has he a right to bear arms? He has. It is an absolute

right, secured by the Constitution. I submit therefore, to your honors, that whether decided by the words of the Constitution as it originally stood, or by the words of the fourteenth amendment, or decided by general considerations, which addressed themselves to the judgment and the heart, the right to bear arms is a modified right, and it is for the state, in the exercise of its own judgment, in the discharge of the obligations imposed upon them by their own sovereignty, to decide whether all men in the state shall be permitted to bear arms to the terror of all women and children of the land; or whether any particular class should be permitted to bear arms and every other class denied the privilege. I speak it with no disrespect to the colored man, but is he to have a musket placed in his hands and a

white man refused it? Now that I have supposed what may have been the case, merely for the sake of illustration, I have as much right to imagine, though my wings may not be as strong as those of the gentlemen on the other side, but I can very well conceive, and the heart of every man will lead him to that conclusion, that to permit one class of citizens to bear arms, and to practically deny it to the other, is to place that other in subjection to the former. And that would be tyranny unbearable and utterly abhorrent to every principle upon which our institutions rest, and in conflict with the best considered rights of the other citizens; the right of the freeman to protect himself against aggression; the right of a freeman not to be subject to aggression by a class whose interests, or supposed interests, it may

be to wipe them off from the face of the earth. Unless, may it please your honors, that it be held to be within the authority of the United States Government.

I hazard nothing in predicting that the day will come when our institutions will totter to their very foundations; or, as well might you attempt to uproot a mountain from its base, as to seek to fix the yoke of slavery upon men determined to be free. The black man, it is conceded, is a freeman. In the same of justice and humanity, in the name of those rights for which our fathers fought, you cannot subject the white man to the absolute and uncontrolled dominion of an armed force of a colored race.

Judge Bond. The court is not ready to determine this question. Is the counsel for the Government ready to go on with another indictment?

Mr. Stanbery. Here is one thing, may it please your honors, we are ready to go on with, and that is the return of the writ of habeus corpus in the case if Leander Spencer.

Judge Bond. We desire to reach some case.

Mr. Corbin. There are other indictments here, but they all waive indictment for attempts to deprive citizens of the right to bear arms. That is one of the principle things in connection with this conspiracy; it was systematically done, and was one of the main objects of the conspiracy, to deprive citizens of the right to have and bear arms, and to deprive them of the possession of arms as well as to prevent them from voting. All the cases returned by the grand jury waive that count, and we will never abandon it until we are obliged to.

Judge Bond. We will go on with the matter of habeus corpus....

Evening Session.

The court met pursuant to adjournment.

Judge Bond. Are the counsel ready to proceed?

Mr. Corbin. We are waiting for the decision of the court on the count as to the right of bearing arms. I might as well say here that we regard it as one of the vital grounds of this prosecution. The right has been trampled on again and again in this State in the most flagrant and systematic manner. I think if the right is denied us to prosecute for the offense that we had better stop.

Judge Bond. The court is not ready to give you an opinion on that subject now.

Mr. Chamberlain. There is one other indictment in which that count is omitted, but that has been fixed by the counsel for the defense and ourselves for to-morrow morning; all the other indictments have in them the count for bearing arms.

Judge Bond. There is one thing I would like to say to the bar. Te act of Congress which authorizes the court to summon witnesses on behalf of the defense, at the expense of the United States, requires that application be made in open court. Several applications have been made to each of the judges to issue subpoenas to the marshall to bring in witnesses for the defense, but it is not in the power of the court to do it except application be made in open court during the session....

11th days proceedings

December 12

[Jury selection/arguments - Pages 1674,75,76,77]

[1678 - Reading of the charges of conspiracy to prevent and control colored voters, keeping them from the polls. As well as conspiracy and execution of murder]

[1679]

...Mr. Corbin. . . . . That on the same evening they visited divers other houses of the colored people, threatened them, took them out, robbed them of their arms, and informed them that if they should vote any more they would be killed. Gentlemen, this comprises, in brief words, all that we desire to show to you in the opening. We proceed, in this indictment, under the authority found in the sixth section of the act of May 1, 1870. . . .

[Arguments concerning Witnesses, and the number of people/cases being tried]

[1680-87 - Witness testimony/arguments]

[Page 1688]

The Court. Whether the organization, (Ku'Klux-Klan), was armed according to the by-laws?

Gunn. Yes sir; they were armed.

The Court. What were their arms?

Gunn. Most generally pistols, sometimes shot guns, muskets, &c. . . .

[Page 1689-1799 testimony concerning the klan]

[Page 1810]

...Argument of Hon. D.H. Chamberlain. . . .

[Page 1810]

...Now, the attempt is made to substitute for this purpose of the Klan, and the killing of colored parties, but on the only charge of this indictment of seeking to deprive Jim Williams of his right to bear arms, and killing him because he insisted upon that right.

And here was the United States governments response to the above:

The following message was received from the President of the United States, by Mr. Porter, his secretary:

To the Senate and House of Representatives:

“...The past year has, under a wise Providence, been one of general prosperity to the nation. It has, however, been attended with more than usual chastisements in the loss of life and property, by storm and fire. These disasters have served to call forth the best elements of human nature in our country, and to develop a friendship for us on the part of foreign nations which goes far toward alleviating the distresses occasioned by these calamities. The benevolent, who have so generously shared their means with the victims of these misfortunes, will reap their reward in the consciousness of having performed a noble act, and in receiving the grateful thanks of men, women, and children whose sufferings they have relieved....”

“...There has been imposed upon the Executive branch of the Government the execution of the act of Congress approved April 20, 1871, and commonly known as the Ku-Klux law, in a portion of the State of South Carolina. The necessity of the course pursued will be demonstrated by the report of the Committee to Investigate Southern Outrages. Under the provisions of the above act, I issued a proclamation calling the attention of the people of the United States to the same, and declaring my reluctance to exercise any of the extraordinary powers thereby conferred upon me, except in case of imperative necessity, but making known my purpose to exercise such powers whenever it should become necessary to do so for the purpose of securing to all citizens of the United States the peaceful enjoyment of the rights guaranteed to them by the Constitution and the laws.”

“After the passage of this law, information was received, from time to time, that combinations of the character referred to in this law existed, and were powerful in many parts of the Southern States, particularly in certain counties in the State of South Carolina.”

“Careful investigation was made, and it was ascertained that, in nine counties of that State, such combinations were active and powerful, embracing a sufficient portion of the citizens to control the local authority, and having, among other things, the object of depriving the emancipated class of the substantial benefits of freedom, and of preventing the free political action of those citizens who did not sympathize with their own views. Among their operations were frequent scourgings and occasional assassinations, generally perpetrated at night by disguised persons, the victims in almost all cases being citizens of different political sentiments from their own, or freed persons who had shown a disposition to claim equal rights with other citizens. Thousands of inoffensive and well-disposed citizens were the sufferers by this lawless violence.”

“Thereupon, on the 12th of October, 1871, a proclamation was issued, in terms of the law, calling upon the members of those combinations to disperse within five days, and to deliver to the marshal or military officers of the United States all arms, ammunition, uniforms, disguises, and other means and implements used by them for carrying out their unlawful purposes.”

“This warning not having been heeded, on the 17th of October another proclamation was issued, suspending the privileges of the writ of habeas corpus in nine counties in that State.”

“Direction was given that, within the counties so designated, persons supposed, upon creditable information, to be members of such unlawful combinations should be arrested by the military forces of the United States, and delivered to the marshal, to be dealt with according to law. In two of said counties, York and Spartanburgh, many arrests have been made. At the last account, the number of persons thus arrested was one hundred and sixty-eight. Several hundred, whose criminality was ascertained to be of an inferior degree, were released for the present. These have generally made confessions of their guilt.”

“Great caution has been exercised in making these arrests, and, notwithstanding the large number, it is believed that no innocent person is now in custody. The prisoners will be held for regular trial in the judicial tribunals of the United States.”

“As soon as it appeared that the authorities of the United States were about to take vigorous measures to enforce the law, many persons absconded, and there is good ground for supposing that all of such persons have violated the law. A full report of what has been done under this law will be submitted to Congress by the Attorney General.”

“In Utah there still remains a remnant of barbarism, repugnant to civilization, to decency, and to the laws of the United States. Territorial officers, however, have been found who are willing to perform their duty in a spirit of equity and with a due sense of the necessity of sustaining the majesty of the law. Neither polygamy nor any other violation of existing statutes will be permitted within the territory of the United States. It is not with the religion of the self-styled Saints that we are now dealing, but with their practices. They will be protected in the worship of God according to the dictates of their consciences, but they will not be permitted to violate the laws under the cloak of religion...”.

**********

Journal of the House of Representatives of the United States,

FRIDAY, April 19, 1872.

A message was received from the President of the United States, by Mr. Porter, his private secretary; which was handed in at the Speaker's table.

Subsequently,

The Speaker laid the said message before the House, as follows, viz:

To the House of Representatives:

In answer to the resolution of the House of Representatives of the 25th of January last, I have the honor to submit the following, accompanied by the report of the Attorney General, to whom the resolution was referred:

Representations having been made to me that in certain portions of South Carolina a condition of lawlessness and terror existed, I requested the then Attorney General Akerman to visit that State, and after personal examination to report to me the facts in relation to the subject.

On the 16th of October last he addressed me a communication from South Carolina, in which he stated that in the counties of Spartanburgh, York, Chester, Union, Laurens, Newberry, Fairfield, Lancaster, and Chesterfield there were combinations for the purpose of preventing the free political action of citizens who were friendly to the Constitution and the Government of the United States, and of depriving emancipated classes of the equal protection of the laws.

"These combinations embrace at least two-thirds of the active white men of those counties, and have the sympathy and countenance of a majority of the one-third. They are connected with similar combinations in other counties and States, and no doubt are part of a grand system of criminal associations pervading most of the Southern States. The members are bound to obedience and secrecy by oaths which they are taught to regard as of higher obligation than the lawful oaths taken before civil magistrates.

"They are organized and armed. They effect their objects by personal violence, often extending to murder. They terrify witnesses: they control juries in the State courts, and sometimes in the courts of the United States. Systematic perjury is one of the means by which prosecutions of the members are defeated. From information given by officers of the State and of the United States and by credible private citizens, I am justified in affirming that the instances of criminal violence perpetrated by these combinations within the last twelve months in the above-named counties could be reckoned by thousands."

I received information of a similar import from various other sources, among which were the Joint Select Committee of Congress upon Southern Outrages, the officers of the State, the military officers of the United States on duty in South Carolina, the United States attorney and marshal, and other civil officers of the Government, repentant and abjuring members of those unlawful organizations, persons specially employed by the Department of Justice to detect crimes against the United State, and from other credible persons.

Most, if not all, of this information, except what I derived from the Attorney General, came to me orally, and was to the effect that said counties were under the sway of powerful combination, properly known as "Ku-Klux Klan," the objects of which were, by force and terror, to prevent all political action not in accord with the views of the members, 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; that these combinations were organized and armed and had rendered the local laws ineffectual to protect the classes whom they desired to oppress; that they had perpetrated many murder, and hundreds of crimes of minor degree, all of which were unpunished; and that witnesses could not safely testify against them unless the more active members were placed under restraint.

U. S. GRANT.

Executive Mansion, April 19, 1872.

The same having been read,

On motion of Mr. Dickey,

Ordered, That it be referred to the Joint Select Committee on the Insurrectionary States and printed.

Sure would be nice if our government came to the defense of our right now, eh? Instead of continuously attempting to infringe upon it....

Update to the above. The following is what the U.S. Supreme Court ruled on the appeal of the circuit court case above,  [U.S. v. Rosenberg, 7 Wall. 580, 19 L. ed, 263.] :

And here is how the United States Supreme Court ruled on the Appeal:

UNITED STATES Plff.,
 v.

J.W. AVERY et al
(See S.C. 13 Wall. 251 253.)

Jurisdiction of division of opinion in criminal action.

1. This court has no jurisdiction under the judiciary act of 1802, of a division of opinion between the judges of a circuit court as to whether such court had jurisdiction to try the offense charged In an Indictment, arising on motion to quash the Indictment.
2. U.S. v. Rosenberg, 19 L. ed. 263, followed.
[No 578]

Argued Mar. 19, 20, 1872. Decided Mar 21, 1872.

...2. Whether the right to keep and bear arms is a right "granted and secured by the Constitution of the United States, so as to support the third count of said indictment, and render the offense therein charged cognizable in this court."

"On which questions the opinions of the judges were opposed..."

"Messrs. Geo. H. Williams, Atty. Oen. and C.H. Hill, Asst. Atty. Gen., for United States:

"The questions certified in this case having arisen upon a motion to quash the several counts of the indictment therein mentioned, this court cannot take cognizance of the same, such motion being preliminary in its character and determinable by the court below as a matter of pure discretion. U.s. v Rosenberg, 7 Wall. 580 19 L. ed. 263.

   "Messrs. Henry Stanbery, R. Johnson, and D.D. Field for defendants in error.

   "Mr. Chief Justice Chase delivered the opinion of the court:

   "A majority of the court are of opinion that this case is controlled by the decision in the case of The U.S. v. Rosenberg, 7 Wall. 580, 19 L. ed, 263.

"I am unable to concur in that opinion, but the case must be dismissed."