Freedom's Detective

by Charles Lane

  Meanwhile, the publication of all the dirt the Secret Service had on Joshua D. Miner, accompanied by an accurate portrait of him, took a toll on the erstwhile Tammany contractor’s reputation and the licit businesses that depended on it. Public exposure also meant that he was “effectually reduced to impotence in crime,” as Memoirs put it, echoing Whitley’s argument at the Senate hearing. Miner never returned to counterfeiting prior to his death in 1886.

  Hiram C. Whitley had managed to get the last word against his nemesis, the so-called “autocrat of coney men.” The Secret Service chief could devote attention to other missions, including the highly innovative—and highly risky—investigation in which he and the Secret Service had been covertly engaged simultaneously with their pursuit of Joshua D. Miner.

  As a publisher’s note in Memoirs explained, that special assignment would be the subject of a forthcoming second book, also based on government files: the “intensely thrilling records of the doings of the United States Secret Service division in shadowing, hunting down, and arresting many noted members of ‘The Ku Klux Klan.’”85

  5

  “The government secret agents were everywhere upon their track.”

  Hiram C. Whitley had interpreted the denouement of the George W. Ashburn case optimistically. The Ku Klux Klan conspirators escaped conviction in July 1868, but the detective saw a consolation prize in the state legislature’s ratification of the Fourteenth Amendment and Georgia’s reinstatement to the Union under a Republican governor and Republican-drafted constitution. Such reforms, Whitley believed, could not give Ashburn justice, but they might serve his cause: the “equality of the oppressed race.”

  Subsequent events undercut that hope. As soon as United States Army authority in Georgia lapsed, the state’s white supremacist Democrats set about overturning the new Reconstruction political order. By September 1868 they had engineered the expulsion of twenty-eight African American lawmakers, all Republicans, from the state legislature on the spurious grounds that the state’s new constitution did not specifically allow black men to serve. Republicans, most of them black, staged a protest march; when they reached the town of Camilla on September 19, 1868, an armed white mob opened fire, killing twelve.1

  The Klan replicated these tactics across the South, and the terror continued for the next three years.2 In October 1868 an Arkansas Klan leader murdered a white Republican congressman; that same year the South Carolina Klan assassinated three black members of the state legislature. Late in 1869, a mob in North Carolina shot at the home of freedman Dan Blue, a witness against several Klansmen in an arson case, wounding him and killing his pregnant wife and five children. In 1870, armed whites attacked a political rally of two thousand mostly black Republicans in Eutaw, Alabama, leaving two dead and fifty-four injured. In March 1871, the Klan massacred thirty African Americans in Meridian, Mississippi.

  At a time when state legislators still selected United States senators, and Southern and border states combined controlled roughly half of the electoral college, Republican leaders realized that the violence against their supporters in the South posed a political threat as well as a moral one. The Ku Klux Klan—numbering tens of thousands of sworn members across the southeastern United States, and enjoying the informal support of many times that number in the white population—constituted the Democratic party’s terrorist wing.3 Unchecked, it could stamp out black voting, thus enabling Democrats to take control of state governments in the former Confederacy, followed, possibly, by control of the federal government.

  The Republicans managed to win Congress and the White House in 1868, and to hold on to Congress in 1870. As 1871 began, however, the Democrats held at least one branch of state government in Georgia, Alabama, Virginia, Tennessee, and North Carolina. This boded ill for Republicans in the upcoming 1872 contest, when the presidency and Congress would again be at stake.

  An editorial in the pro-Republican Harper’s Weekly summarized the party’s predicament, and the country’s:4

  If our political system really be one which forbids the government to protect its own citizens when voting for its officers, and which requires the country to look on passively while mobs controlling various State authorities harry those voters, it will certainly be necessary to reconsider some of our raptures over the infinite superiority of the American to all other possible systems of government.

  As Harper’s implied, the federal government had been slow to respond, even with Republicans in charge of the White House and Congress. Sensitive, as a former general, to accusations of “military despotism,” President Grant hesitated to intervene in the South for what could easily be portrayed as partisan purposes. There was also reluctance in Washington to admit that Reconstruction might not be working as planned, and—still—a strong presumption that law and order was a state responsibility, not a federal one. As late as February 11, 1871, Grant’s attorney general instructed a Department of Justice official in Alabama that the states are “the regular and usual protectors of person and property.”5

  The most important constitutional authority for a federal crackdown on the Klan—the Fifteenth Amendment, which banned racial discrimination in voting rights, and empowered Congress to enforce that prohibition—did not take effect until February 3, 1870. Not until May 31, 1870, did Congress make it a federal crime to “go in disguise upon the highway” and attack those who exercised the right to vote or other civil rights.6 Another month and a half went by before Congress created the Department of Justice, headed by the attorney general, and empowered it to enforce that statute.

  Republican governments in Tennessee, Arkansas, Mississippi, and the Carolinas, meanwhile, tried to take on the Klan using state authority and resources. North Carolina’s campaign was among the most aggressive.7 In 1869, a year before Congress enacted its voting-rights enforcement law, the Tar Heel state legislature had already adopted a similar measure. Next, Republican Governor William Woods Holden secured legal authority and funding to beef up the state militia and recruit two dozen detectives.8 After the murder of one of these detectives—who doubled as a Republican state legislator—in Caswell County on May 21, 1870, Governor Holden dispatched three hundred militia troops to the area. They arrested one hundred Klansmen.

  Governor Holden’s crackdown failed, though. Planning to try the Klan detainees before a state militia commission, he revoked their right to ask state courts for writs of habeas corpus. A federal district judge, noting that the legislature had denied the governor this power, ordered the Klansmen released. The uproar over Holden’s supposed dictatorial methods demoralized Republicans and buoyed Democrats; the latter won the legislature in North Carolina’s August 4, 1870, election. The new majority, led by well-known Klansmen, abolished the anti-Klan detective force and militia, and impeached Holden.

  Other Southern states, too, proved unable to curb the Klan. Vivid atrocity reports poured in to Congress and the executive branch in Washington. In his annual message to Congress on December 5, 1870, President Grant alluded to “violence and intimidation” in recent elections; eleven days later, the Senate asked President Grant for a full report. He responded in January with two volumes documenting the rampant terror in North Carolina and other states.9

  On March 10, 1871, President Grant ordered the United States Army’s 7th Cavalry to South Carolina, at the request of that state’s Republican governor; the troops arrived sixteen days later. In the meantime, the president declared he would give South Carolina’s Klan twenty days “to disperse and retire peaceably to their respective abodes,” or else he would order the cavalry into action. On March 23, he visited the Capitol and asked Congress for new laws to “secure life, liberty, and property, and the enforcement of law, in all parts of the United States.”10

  In the House, Representative Benjamin Butler of Massachusetts, Hiram C. Whitley’s old boss in New Orleans, recounted the Klan’s whipping of a Northern-born white superintendent of Africa
n American schools in Mississippi. The attack left the victim’s nightshirt soaked in blood. Why, Butler demanded, could the federal government use its forces lawfully to protect a United States citizen attacked by enemies abroad, but not “on our own soil, under his own rooftree, and covered by our own flag?”11

  The resulting Ku Klux Klan Act of April 20, 1871, strengthened the previous year’s law by allowing President Grant to suspend habeas corpus where he determined Klan violence could not otherwise be controlled; by requiring jurors in federal Klan trials to swear they were not members of the organization; and by authorizing federal troops to assist United States Marshals in arresting Klan suspects. Also, Congress empaneled a joint committee, bipartisan but chaired by a Republican, to investigate—and publicize—the truth behind the atrocity reports.

  As of May 1871, the basic elements of Washington’s anti-Klan strategy were in place. It essentially replicated, at the federal level, the state-level measures that North Carolina and others had already tried: tougher laws, armed force, selective suspension of habeas corpus. There was, however, one exception: the federal government had not committed to a role for covert action—for detectives.

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  In all of American history, there had never been a federal undercover operation to investigate civilians for alleged criminal violations of the constitutional rights of fellow citizens, much less whites’ violations of African Americans’ rights. Novel as the idea might be, it had become a practical necessity. If Klansmen were to be put on trial in federal courts, as Congress and the Grant administration envisioned, the government would have to infiltrate the conspiracy and gather evidence to use against its members.

  That, at least, was the view of a small but influential group of Southern Republicans, who feared for their political futures, and their lives—and those of their African American fellow citizens. The group’s leader in Congress was North Carolina Senator John Pool. A pre–Civil War opponent of secession, Senator Pool’s close alliance with Governor Holden began in the 1864 North Carolina “peace movement,” which unsuccessfully advocated a unilateral state exit from the Confederate military effort. After the Civil War, Pool became a Republican and, in the Senate, drafted the key enforcement provision of the 1870 federal anti-Klan law—modeling it on his home state’s legislation.12

  In early 1871, Pool began quietly seeking money and legal authority for a team of federal detectives to penetrate the Klan. He proposed it to the Republican Senate Appropriations Committee chairman, Cornelius Cole of California, but Senator Cole doubted its propriety. At Pool’s insistence, however, Cole agreed to consult President Grant’s attorney general, Amos Tappan Akerman.13

  As Pool knew, the attorney general would sympathize with his idea. Akerman, too, was a Southern Republican, the only one in President Grant’s cabinet, and a strong advocate of equal civil and political rights.14 Born in Portsmouth, New Hampshire, in 1821, Akerman graduated Dartmouth in 1842, then wandered various states, North and South, before settling in Georgia, where he taught school while receiving legal training. Throughout the 1850s, he practiced law; he also farmed and held slaves, but opposed secession until the firing on Fort Sumter. At that point, the Union’s failure to protect its Southern loyalists gave Akerman no alternative but to collaborate with the Confederacy.

  New Hampshire–born Amos T. Akerman hoped to save freedom in his adopted home state of Georgia by crushing the Ku Klux Klan. He recruited Hiram C. Whitley and the Secret Service to that cause. (National Archives)

  Or so he would rationalize after the war, when he repented his brief Confederate military service (in the rear echelons), became a Republican, and urged white Georgians to accept Reconstruction. Akerman believed, as he would later write, that “there would be strife as long as one part of this free people were denied rights which the other part enjoyed.” Akerman served with George W. Ashburn in Georgia’s constitutional convention, and ran for presidential elector on the Republican ticket in 1868, in return for which President Grant appointed him Georgia’s United States Attorney in 1869. (Congress passed a special law making him eligible, despite his Confederate past.) In June 1870, the president promoted him to attorney general at the urging of Representative Butler, who had met Akerman while the latter lobbied for his state in Washington.

  In July 1870, his first month in office, Akerman instructed Department of Justice lawyers in the South to prosecute every alleged violation of the federal anti-Klan criminal laws that came to their attention. “That any large portion of our people should be so ensavaged as to perpetuate or excuse such actions is the darkest blot on Southern character in this age,” he would confide to his diary.15 Yet he grew frustrated with the difficulty of securing indictments and convictions. In a January 23, 1871, letter to Senator Cole, the attorney general explained that the federal government needed detectives to overcome these problems. “In some parts of the country, the sufferers by the crimes punishable in these [anti-Klan] acts are, for the most part, poor and ignorant men,” he wrote, “who do not know how to put the law in motion, or who have some well-grounded apprehension of danger to themselves from the attempt to enforce it.”16

  Senator Pool’s proposed legislative language was “vague,” Akerman conceded. As written, it would provide funds for “the detection and prosecution of crimes against the United States, to be expended under the direction of the attorney general.”17 However, these phrases could only refer to violations of the federal anti-Klan law, since, except for a relative handful of offenses—tax evasion, interference with the mails, and the like—there were hardly any other “crimes against the United States” at the time.

  What the attorney general did not tell Cole, perhaps because he thought it went without saying, was the real reason for the indirect statutory language: political caution. A clear statement might arouse potential opponents of the bill, or tip off the Klan.

  Persuaded by the attorney general’s argument, Cole inserted funding authority for Pool’s plan into a must-pass appropriations bill, which President Grant signed on March 3, 1871.

  Four weeks later, Pool forwarded the Department of Justice a request for a federal detective from Tod R. Caldwell, the Republican acting governor of North Carolina, who had replaced the impeached William Woods Holden. Klan leaders “can be ferreted out if proper measures are taken to do so,” Caldwell asserted. “In order to accomplish this, I think it necessary that some discreet person should be sent...as a detective. I have no authority to appoint such an officer nor any funds to defray his expenses. Cannot the president do so?”18

  Caldwell wanted a detective sent from New York or Washington “at once.” Time was of the essence because the same Democratic North Carolina legislature that had impeached Holden had also called a referendum for August 3, 1871, on whether to hold a new state constitutional convention. Democrats hoped to win through Klan intimidation, then use the convention to gut the civil and political rights established in the constitution drafted in 1868 under the Reconstruction Acts.19 Pool scribbled at the bottom of Caldwell’s letter: “I hope the Attorney General will be able to act on his suggestions promptly.” When Akerman responded, accurately, that the new authority to fund detectives did not take effect until July 1, 1871, Pool went back to his colleagues on Capitol Hill, who were about to vote on the Ku Klux Klan Act, and got them to make the money available immediately.20

  Still, Attorney General Akerman hesitated to take the momentous step of deploying detectives without a clear order from the president. Thus far, Pool, Akerman, and their allies had proceeded stealthily, so stealthily that it was not entirely clear President Grant grasped the full meaning of the measure he had signed. It was one thing to gain the authority and funding that way, and quite another to use them without informing him.

  There were risks in approaching Grant directly, the main one being he would say no. Having Akerman float the idea at a cabinet meeting might elicit the president’s support, or trigger o
bjections from Grant’s other advisers. The more people who knew about the plan, the more likely it would leak. Possibly Senator Pool could approach the president, but that, too, posed questions of discretion and plausible deniability.

  Finally, Pool, Akerman, and other advocates decided to sound out the president indirectly, through a third party, whom they could disavow if he met with rejection, or if his mission became public. Getting presidential approval for an undercover operation, in short, required an undercover operation.

  * * *

  On June 7, 1871, Congress’s new Joint Select Committee to Inquire into the Condition of Affairs in the Late Insurrectionary States—the “Ku Klux Committee”—heard testimony from North Carolina witnesses that Senator John Pool had invited to Capitol Hill.

  Joseph Goodman Hester, a deputy United States Marshal based in Raleigh, told the panel of his forays into North Carolina’s Klan strongholds over the previous six months. He had executed arrest warrants on six men in Moore County wanted for whipping two black Republicans, and forcing a white man to burn down a school he had built for black children; seized another half dozen men in Caswell County for assaulting a politically active freedman, Essic Harris; and, with help from United States Army troops, rounded up thirty perpetrators of a mob attack in Cleveland County on a sixty-year-old white Republican, Aaron Biggerstaff, and his family. Klansmen, Hester reported, would tell their victims that “they are not human beings, that they come from the boneyards at Richmond, that they have been seven years in the boneyards, and have come for vengeance.”21