South Carolina Ku Klux Klan Trials:
1871-72

Defendants: Robert Hayes Mitchell, John W. Mitchell, Thomas B. Whitesides, John S. Millar (Miller), Edward T. Avery
Crimes Charged: Conspiracy to prevent blacks from voting; conspiracy to oppress, threaten, and intimidate blacks who had exercised their right to vote in 1870
Chief Defense Lawyers: Reverdy Johnson, Henry Stanbery, James F. Hart, C. D. Melton, W. B. Wilson and F. W. McMaster
Chief Prosecutors: Daniel H. Chamberlain, David T. Corbin
Judges: Hugh L. Bond, George S. Bryan
Place: Columbia, South Carolina
Date of Trial: December 1871-January 1872
Verdicts: Guilty
Sentences: Robert Hayes Mitchell: 18 months imprisonment and a $100 fine; John W. Mitchell: 5 years imprisonment and a$1,000 fine; Whitesides: 12 months imprisonment and a $100 fine; Millar: 3 months imprisonment and a $20 fine; Avery: fled before sentencing and later pardoned by President Ulysses S. Grant

SIGNIFICANCE: With the arrest and later trials of several Ku Klux Klan members in the South, particularly South Carolina, the federal government attempted to demonstrate the lengths it would go to in order to preserve the Fourteenth and Fifteenth Amendments to the Constitution.

Six bored Confederate veterans founded the original Ku Klux Klan (KKK) as a social club on December 24, 1865, in Pulaski, Tennessee. The organization existed less than 10 years, but for decades it was glorified as the instrument by which northern carpetbaggers and Radical Republicans were driven out of the South, illiterate and "savage" blacks were put down, and whites were restored to their "rightful place" in southern society. This myth reached its height in the early twentieth century with the 1905 publication of Thomas Dixon's novel The Clansmen, and the release 10 years later of D. W. Griffith's movie The Birth of a Nation; its truth is a fundamental tenet to every modern Klansman.

In reality, the original KKK was a brutal terrorist movement that lynched and shot hundreds and beat, whipped, raped, and mutilated thousands more. While most of its victims were black, other targets included northern whites who moved south after the Civil War, southern whites who supported the federal government's Reconstruction policy, and anyone who violated what the Klan considered the proper social order. A reign of terror existed throughout much of the former Confederacy, and in many places the state and local authorities could do nothing to stop it.

The South Carolina Klan

The Klan was particularly active in South Carolina. For various reasons, it began to decline there in late 1868, but it was revived after the Republicans, supported by the state's black majority, won the October 1870 election. The terrorism was worst in the northern part of South Carolina, especially in Spartansburg, Union, and York counties. For example, in Spartansburg County between the election and July 1871, four people were killed and over 200 were beaten, whipped, wounded by gunfire, or had their ears cut off by Klan members.

Until 1870, the crimes committed by the KKK and its members were violations of state and local, but not federal, law. Then, on March 30, 1870, the Fifteenth Amendment to the Constitution, which granted blacks the right to vote, was ratified after a long and bitter national debate. Equally important, it gave the federal government the power to protect that right with appropriate legislation. On May 31, 1870, the Enforcement Act was passed by Congress and signed by President Ulysses S. Grant. The law dealt mostly with the bribery and intimidation of voters, but it also made it a federal offense for two or more persons to conspire to deprive someone of any right of citizenship or to punish that person for exercising those rights.

The Ku Klux Klan Act

Initially, it was hoped that the mere existence of the Enforcement Act would deter further actions by the Klan and little was done to enforce the new law. However, the strategy did not work. In March 1871, conditions in South Carolina were bad enough that Governor Robert Scott asked for federal troops to help suppress KKK activities in his state. In response, Congress passed and President Grant signed on April 20, 1871, the Ku Klux Klan Act.

Because there were so many Klansmen and since many of the local police in the South were members of the KKK or sympathetic to its cause, the Ku Klux Klan Act allowed the president to use the army to apprehend violators of this new law. The legislation also gave the president, until 1872, the power to suspend the writ of habeas corpus. The latter provision was important because, if habeas corpus was suspended, then the authorities could make mass arrests without having to bring each defendant immediately before a court to face charges. Such a tool was vital in some southern counties where there were too many Klansmen to promptly bring them all to trial. Furthermore, because of the large number of suspects, the suspension of habeas corpus allowed the prosecutors to keep evidence (including the identities of Klansmen yet to be arrested) secret until all the defendants were in custody.

In July 1871, the U.S. Justice Department sent instructions to its officers in the South to begin prosecutions under the Ku Klux Klan Act. Those defendants whose crimes were committed before the passage of the law would be prosecuted under the Enforcement Act. Arrests and trials began in Mississippi and North Carolina, but by this time the Klan in South Carolina was out of control. On October 12, President Grant issued a proclamation ordering the Klansmen there to disperse and surrender their weapons. Nothing happened, so on October 17 Grant suspended habeas corpus in nine South Carolina counties and sent in troops to help the local U.S. marshal make the arrests.

By the end of the year, hundreds of Klansmen in South Carolina were arrested while even more fled the state; some ran as far away as Canada. Others voluntarily surrendered, gave depositions, and were released. In York County alone, 195 were taken into custody, about 200 evaded arrest, and at least 500 turned themselves in. Another 200 arrests were made in Union County and hundreds more were apprehended in Spartansburg and nearby Chester County. Indeed, the numbers were so great that the legal system could not handle them all. As a result, only the most serious offenders were detained and prosecuted while the rest were released on bail after making sworn confessions. The arrests continued for two years, but most of them were made before December 31, 1871. Fortunately, very little violence accompanied the arrests.

The Trials Begin

Of the original 220 Klansmen who were indicted, only five were prosecuted. 53 others pleaded guilty and the cases against the rest were postponed. The five who went to trial were all charged with violating the Enforcement Act. Four of the defendants, Robert Mitchell, John Mitchell, Thomas Whitesides, and John Millar [or Miller; court transcripts alternate between the spellings], were charged with conspiracy to prevent "male citizens of the United States of African descent" from voting in the upcoming 1872 election. In addition, Robert Mitchell was accused of conspiracy to oppress, threaten, and intimidate a black man because he had voted in the 1870 election. John Mitchell and Thomas Whitesides, were also charged with three counts of conspiracy to prevent a black man from voting in 1872 and to oppress, threaten, and intimidate him because he voted in 1870. The fifth defendant, Dr. Edward T. Avery, was charged with conspiracy to prevent three blacks from voting in 1872 and with conspiracy to oppress, threaten, and intimidate the three because they had voted in 1870.

The initial trials were held before the U.S. Circuit Court in Columbia. Approximately $10,000 (over $100,000 today) was raised by public donations to hire Reverdy Johnson and Henry Stanbery, both former U.S. attorney generals, to assist the local defense lawyers. The prosecutors were U.S. attorney David T. Corbin and South Carolina's attorney general (and future governor) Daniel H. Chamberlain. (Both Corbin and Chamberlain were northerners who had moved to South Carolina after the Civil War.) The trials were presided by U.S. Circuit Court judge Hugh Bond, a former Maryland lawyer and state judge who sat on the recent Klan trials in North Carolina, and U.S. District Court judge George Bryan, a native of South Carolina who had been pro-Union during the Civil War.

At all four trials (Whitesides and John Mitchell were tried together), former slaves constituted the majority of the jurors. (At Robert Mitchell's and Millar's trials, nine of the 12 jurors were black; at the others, 11 of the 12.) In addition, the few whites on the juries were all Republicans and, thus, hostile to the Klan. No former Confederate soldiers (who would probably be Klansmen or supporters of the KKK) sat in judgment of the defendants because federal law prohibited Confederate veterans from sitting on federal juries.

Before the trials began, defense lawyers Reverdy Johnson and Henry Stanbery spent almost two weeks to quash nine of the 11 counts in an indictment against Allen Crosby and others. (Crosby and seven of his codefendants later pleaded guilty to the remaining charges.) Johnson and Stanbery also participated in Mitchell's defense while local counsel alone represented the other four defendants. However, the evidence presented during Mitchell's trial of the Klan's cruelty was so overwhelming that at one point Johnson, while maintaining his client's innocence, felt compelled in the courtroom to attack the activities of the KKK.

The four trials each lasted between two days and a week. In the end, Robert Mitchell was convicted of one of the two charges against him. John Mitchell and Thomas Whitesides were convicted of two of the four counts they faced. Millar and Avery were also convicted. Because Robert Mitchell, Whitesides, and Millar had minor roles in the Klan's activities, they received minor sentences. In contrast, John Mitchell was a prominent Klansman and, although he pleaded for mercy, he was sentenced to five years in prison and fined $1,000. Dr. Avery, however, was never sentenced; free on bail, he realized halfway through his trial that he was going to be convicted and fled. (The trial continued in his absence.) Of the 53 defendants who pleaded guilty, penalties ranged from three months to five years imprisonment with fines varying from $10 to $1,000. Except for those who were underage—they were sent to the Detroit House of Corrections—everyone who received sentences of a year or more was incarcerated at the federal penitentiary in Albany, New York; the rest served their time in various southern prisons and jails.

More convictions of Klansmen were obtained in South Carolina in 1872, but the number (37) was much smaller than those in 1871. Besides South Carolina, arrests and trials for violations of the Enforcement and the Ku Klux Klan Acts occurred all throughout the South in 1871 and 1872. However, only in South Carolina was habeas corpus suspended and in no other state were there as many prosecutions. Indeed, outside Mississippi, North Carolina, and Tennessee, the number of arrests and trials elsewhere was small.

It is impossible to measure the effect of the Ku Klux Klan trials. After the 1871 prosecutions in South Carolina, Klan terrorism in the state and elsewhere dramatically dropped. As a result, the number of arrests for violating the Enforcement and the Ku Klux Klan Acts rapidly declined. However, violence against southern blacks by whites in general did not substantially decline.

—Mark Thorburn

Suggestions for Further Reading

Randel, William Peirce. The Ku Klux Klan: A Century of Infamy. New York: Chilton Books, 1965.

Reynolds, John A. Reconstruction in South Carolina, 1865-1877. Columbia, S.C.: State Company, 1905.Reprint, New York: Negro Universities Press, 1969.

Shapiro, Herbert. "The Ku Klux Klan during Reconstruction: The South Carolina Episode." The Journal of Negro History 49, no.1. (January 1964): 34-55.

Simkins, Francis B., and Robert H. Woody. South Carolina during Reconstruction. Chapel Hill, N.C.:University of North Carolina Press, 1932. Reprint, Gloucester, Mass.: P. Smith, 1966.

Swinney, Everette. "Enforcing the Fifteenth Amendment, 1870-1877." Journal of Southern History 28, no.2. (May 1962): 202-18.

Williamson, Joel. After Slavery: The Negro in South Carolina during Reconstruction, 1861-1877. Chapel Hill, N.C.: University of North Carolina Press, 1965.