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."
