THE CATHOLIC UNIVERSITY OF AMERICA
The Politics of Race and the Development of the Law and Order President, 1790-1974
A DISSERTATION
Submitted to the Faculty of the Department of Politics School of Arts and Sciences Of The Catholic University of America In Partial Fulfillment of the Requirements For the Degree Doctor of Philosophy © Copyright All Rights Reserved By Joshua Miller Washington, DC 2019
Abstract The Politics of Race and the Development of the Law and Order President, 1790-1974 Joshua L Miller, Ph.D. Director: John Kenneth White, Ph.D. Presidents obtained the power to maintain law and order in the 1790s when they used executive branch institutions to recover fugitive slaves. However, the general public did not become aware of the concept of “law and order” at the national level until Richard Nixon’s 1968 presidential campaign. Even though Nixon’s campaign occurred over fifty years ago, political scientists have not yet determined what law and order actually means or its connection to race; when presidents obtained the power to maintain law and order; or which executive branch institutions carried out these law and order responsibilities. This research project set out to answer these questions and determined that the president’s power to maintain law and order was shaped by the actions of early American presidents when they used executive branch institutions to recover fugitive slaves. This history of law and order president not only shows how 19th- century presidents contributed to the immense power that presidents exercise over federal law enforcement today but also how race profoundly affects the institutional development of the presidency. This dissertation by Joshua Miller fulfills the dissertation requirement for the doctoral degree in Politics approved by John Kenneth White, Ph.D., as Director, and by Enrique Pumar, Ph.D., and Matthew Green, Ph.D., as Readers.
John Kenneth White, Ph.D., Director
Enrique Pumar, Ph.D., Reader
Matthew Green, Ph.D., Reader
ii Table of Contents Tables and Figures ...... v Introduction ...... 1 Defining Law and Order ...... 6 Research Questions and Methodology ...... 9 Chapter 1: Law and Order: From the Colonial Era to the U.S. Constitution ...... 15 Structural Law and Order in the Colonial Era ...... 16 Structural Law and Order and Recovery of Fugitive Slaves ...... 22 Nationalizing Structural Law and Order in the U.S. Constitution ...... 28 Chapter 2 Fugitive Slaves and the Development of the Law and Order President, 1790-1860 ...... 39 The Commander-in-Chief as the Law and Order President ...... 40 Fugitive Slave Problem in Spanish Controlled Florida...... 46 Madison Secret Invasion and Military Missions in Florida ...... 48 Monroe Sparks the First Seminole War ...... 57 Ineffective Bureaucracy and the Fugitive Slave Problem in Florida ...... 58 Andrew Jackson Sparks the Second Seminole War ...... 59 Northern Resistance and the Nation’s First Sanctuary Cities ...... 62 The Law and Order Presidencies of Fillmore, Pierce, and Buchanan...... 67 Chapter 3 Emancipation Proclamation: A Promise for a New Law and Order ...... 75 Lincoln’s Emancipation Proclamation ...... 76 Andrew Johnson Abandons Structural Law and Order ...... 84 Chapter 4 Ulysses S. Grant and the Justice Department's Prosecutions of the Ku Klux Klan ...... 95 The Department of Justice’s Crusade against the Klan ...... 96 Bureaucratic Barriers to Maintaining Law and Order ...... 112 Accusations of Partisan Law and Order ...... 113 Chapter 5 The President Retreats from Law and Order: President Hayes to McKinley ...... 118 Protecting the Fifteenth Amendment ...... 121 Retreating from Law and Order: Benjamin Harrison to William McKinley ...... 125 Chapter 6 The Rise of Episodic Law and Order ...... 131 Theodore Roosevelt’s Retreat and Expansion of Law and Order ...... 132 Roosevelt Creates the FBI ...... 137 President Howard Taft and the White Slave Act ...... 139 The NAACP Pressures Woodrow Wilson ...... 140
iii Wilson’s Expansion of Episodic Law and Order ...... 147 Harding and Coolidge’s Tepid Response to Lynching ...... 148 Herbert Hoover’s Crusade against Organized Crime ...... 151 Chapter 7 : Law and Order and the Civil Rights Era ...... 159 President Roosevelt Lays the Foundation for a New “Law and Order” ...... 160 Harry Truman...... 166 Dwight Eisenhower ...... 168 John F. Kennedy ...... 174 Chapter 8 The Politics of Law and Order, 1964 to 1974 ...... 184 Structural Law and Order in the Johnson and Nixon Years...... 185 Lyndon Johnson and the Politics of Law and Order ...... 188 Fighting Crime in the District of Columbia ...... 191 Johnson’s NationWide Fight Against Street-Level Crime ...... 193 The 1968 Presidential Campaign ...... 200 Richard Nixon ...... 203 Epilogue ...... 212 Explaining the rise Episodic Law and Order ...... 215 Expansion of Presidential Power ...... 216 Bibliography ...... 220
iv Tables and Figures Table Page Figure 1-1 States and Territories of the United States of America…...... 30 Figure 1-2 The Areas of Freedom and Slavery………………………………………………………. 31 Figure 4-1 Criminal Prosecutions under the Enforcement Acts…. ………………………………. 105 Figure 4-2 DOJ Convictions under Enforcement Acts in Mississippi and South Carolina……… 106 Figure 4-3 DOJ Indictments under the Enforcement Acts in Mississippi and South Carolina…. .107 Figure 4-4 Comparison of Criminal Prosecutions… ………………………………………………...108 Figure 4-5 Comparison of DOJ Enforcement Convictions…………………………………………. 109 Figure 4-6 Comparison of DOJ Enforcement Act Indictments……………………………………..110 Figure 5-1 Department of Justice Prosecutions………………………………………………………122 Figure 5-2 Department of Justice Convictions……………………………………………………….123 Figure 5-3 Lynching in America………………………………………………………………………125 Figure 6-1 Lynching During Woodrow Wilson’s Administration………………………………….145 Figure 6-2 Lynching by Decade………………………………………………………………………..154 Figure 6-3 African Americans Lynched by State……………………………………………………..155 Figure 7-1 DOJ Racketeering Prosecutions…………………………………………………………...179 Figure 8-1 Violent Crimes 1960-1968………………………………………………………………….180
v Introduction
Law and order is more than a campaign slogan because it is a critical and enduring part of the institution of the presidency. Republican presidential nominee Richard Nixon knew this in
1968 when he released a chilling Roger Ailes-directed law and order campaign ad. It featured an elderly white woman walking down a dark urban street looking terrified. With every step she took, the narrator with a deep voice would read off criminal statistics, telling the television audience that "violent crime is committed every sixty seconds."1 Nixon’s ad implied that as president he would use his powers to protect people from violent street-level crime. During his acceptance of the Republican nomination, Nixon again promised to use his powers as president to stop the “wave of crime” that had gripped the nation.2 More recently, President Donald J.
Trump deployed a similar strategy, telling audiences in 2016 that he was the “law and order” candidate.3 Because politicians like Trump routinely throw the term “law and order” around, political scholars and the general public have missed the fact that law and order is one of the president’s predominant powers.
1 http://www.unz.com/isteve/nixons-1968-law-order-ad/ 2 Richard Nixon, Address Accepting the Presidential Nomination at the Republican National Convention in Miami Beach, Florida, August 8, 1968, ed., Gerhard Peters and John T. Woolley, The American Presidency Project. 3 https://www.politico.com/story/2016/07/trump-law-order-candidate-225372
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Nixon was the first modern presidential candidate to promise to exercise this power, and
he did so within a racially polarizing context. He called the inner cities “jungles” that could
annex the “affluent suburbs.”4
With this rhetoric, the phrase “law and order” had powerful racial undertones. It
juxtaposed civil rights and crime, allowed Nixon to run against both, and implied that the
methods of civil rights organizers led to the destruction of civil order. 5 Amid this chaos, Nixon
offered a simple solution: “law and order.”
Although Nixon deployed this “law and order” campaign slogan in 1968 to mobilize
white voters, this dissertation demonstrates that the racially infused law and order presidency has
a history that dates to the origins of the American republic. This history, and in particular the development of the law and order presidency and its connection to race, has heretofore been
disregarded by other studies in political science. As result, presidential scholarship has not only
missed the historical antecedents of Nixon's law and order rhetoric but also how an important
dimension of presidential power has developed throughout history.
Presidential scholars have developed a few frameworks for evaluating presidential power,
but have excluded race and the president’s authoirty over law enforcement. Two of the most
significant theoretical frameworks within presidential scholarship focus on the president's power
4 Richard Nixon, Remarks in New York City: "Toward Freedom From Fear” May 8, 1968, ed., Gerhard Peters and John T. Woolley, The American Presidency Project. 5 Michael Flamm, Law and Order Street Crime, Civil Unrest, and the Crisis of Liberalism in the 1960s, (New York: Columbia University Press, 2005), 21. 3
to influence and persuade others or the president's power to act unilaterally.6 Richard Neustadt
established the persuasive model and argued that presidents lack the formal constitutional powers
necessary to enact their agenda. Instead their power comes from an ability to persuade, cajole
and bargain with the Congress and interest groups. Charles Jones similarly argued that the co-
equal branches government distribute rather than concentrate power, and that the Constitution,
Congress and the courts restrain the president’s power.7 Scholars such as William Howell and
Kenneth Mayer disagree with Neustadt’s persuasive model and focus on the president’s ability to
exercise power unilaterally. Presidents, according to Howell and Mayer, can take preemptive
actions through executive orders, which improve their leverage over Congress or alter existing
structures and processes. 8
While the persuasive and unitary frameworks are useful for evaluating presidential
power, both frameworks have ignored how the politics of race shape presidential power. For
example, African Americans spent seventy-five years as slaves; seventy-eight years under racial
segregation and were subjected to lynching and racial mobs; and about thirty-eight years under
mass incarceration. These racial hierarchies makeup 83 percent of American history and makes it
critical to understand how it shaped presidential power. Except for Mayer, presidential scholars
6 William Howell, Power without Persuasion The Politics of Direct Presidential Action. (Princeton: Princeton University Press, 2003); Kenneth Mayer, With a Stroke of Pen, (Princeton: Princeton University Press, 2002) Christopher Yoo, and Steven Calabresi, The Unitary Executive: Presidential Power from Washington to Bush. (United States of America: Yale University, 2008); Richard Neustadt, Presidential Power, and the Modern Presidents the Politics of Leadership from Roosevelt to Reagan, (New York: The Free Press, 1990).
7 Charles Jones, The Presidency in the Separated System, (Washington, DC: Brookings Institute, 1990), 1, 20-21. 8William Howell, Power without Persuasion 13-15; Kenneth Mayer, With a Stroke of Pen, 4-3.
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limit their analysis of presidential power and race to the civil rights era.9 Limiting their analysis
of presidential power and race to this short period allows them to fit race neatly within the two
existing models of persuasion or unilateral action. However, a more in-depth analysis of race
within a historical context would have revealed that the politics of race led to the development of
the law and order president. The politics of race is the conflict or resistance between those
committed to racial equality and those committed to an established racial hierarchy. Throughout
history, African American resistance to established racial hierarchies and the violent response
from white supremacists has forced Congress and the president to expand and modify the
president's power over law and order. These two frameworks have not explored this development
and consequently missed how race is a central variable to the president's law and order powers.
Similarly, the persuasive and unitary framework ignores the president’s direct authority over
federal law enforcement and the Justice Department. As a result, they have ignored one of the
most important powers a president can have—the power to arrest, detain and prosecute U.S.
citizens. If political scholars had explored the president’s authority over federal law enforcement,
they would have discovered the intersection between the politics of race and presidential power.
Legal and American political development scholars have already connected criminal
justice and race to the development of government institutions but have not considered
presidential power in their analysis. Kathleen Sullivan demonstrated that South Carolina
lawmakers created a law and order system for the sole purpose of controlling slaves. Her work
9 David Nichols, A Matter of Justice: Eisenhower and the Beginning of the Civil Rights Revolution, (New York: Simon and Schuster, 2007); Kenneth Mayer, With a Stroke of the Pen, 185; Harvard Sitkoff. "Harry Truman and the Election of 1948: The Coming of Age of Civil Rights in American Politics." The Journal of Southern History, 37, no. 4 (1971): 597-619; Berman, William. The Politics of Civil Rights in the Truman Administration. Columbus: Ohio State University Press, 1970.
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established a connection between the criminal justice system and the control over Africans.10
However, she did not explain whether the federal government had a law enforcement role related
to maintaining slavery. David Ericson argues that the existence of slavery prompted the
development of the U.S military and other executive branch institutions. However, Ericson's
work does not focus on the presidency exclusively and provides no overarching theory about
presidential power. His work gives the false impression that these federal institutions operated at
their own discretion separate from the president.11 Michelle Alexander argued that Nixon’s law
and order campaign eventually led to the War on Drugs under Ronald Reagan.12 She argued that
these policies caused mass incarceration and a new Jim Crow era for millions of African
Americans. Her research, however, does not tell us how Richard Nixon came up with the idea
that a president should have the power to maintain law and order. This lack of context
contributes to the false impression that the president’s role in law and order started after 1968.
The president’s power to maintain law and order could not have started in 1968 because Meghan
Francis shows that the NAACP demanded that the president protect African Americans from the
crime of lynching almost 50 years prior to Nixon’s campaign.13 Francis, however, does not tell
us what made African Americans believe that the president could maintain law and order on their
behalf. African Americans would not have lobbied the president to intervene on their behalf
unless presidents had proven in the past that they had the power to protect them from racial
10 Kathleen Sullivan, "Charleston, the Vesey Conspiracy, and the Development of the Police Power." In Race and American Political Development, edited by Joseph Lowndes, Julie Nokov and T. Dorian Warren, (New York: Routledge, 2008) 59-76. 11 David Ericson, Slavery in the American Republic Developing the Federal Government, (Lawrence: University Press Kansas, 2011). 12 Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, (New York: The New Press, 2010). 13 Megan Francis, Civil Rights and the Making of the Modern American State, (New York: Cambridge University Press, 2014). 6
violence. What actions did presidents take before the 1920s that led African Americans to believe that the president could maintain law and order and protect them from racial violence?
Scholars within the subfield of Race and Ethnicity have also failed to explore the development of
the law and order presidency even though it uses the politics of race to examine changes in
political behavior and government institutions.14 These scholars left these questions unanswered
and left a gap in our understanding of presidential power, law and order and race. This
dissertation addresses this gap and bridges the subfields of presidential scholarship, American
political development, and Race and Ethnicity to explain how the politics of race shaped the
president’s power over law and order starting in the early 19th century.
Defining Law and Order
Scholars have not discussed the development of the law and order presidency because
they have relied on the "law and order politics" instead of evaluating the policies and systems of
law and order. The politics of law and order is a public debate typically between political
opponents about the causes and solutions to an apparent or actual rise in street-level crime. When
Richard Nixon claimed that he would maintain law and order by being tough on crime, this is
nothing more than “law and order politics.” His promise to be tough on crime does not change
anything about crime policy. Scholars cannot focus on these promises because presidents and
presidential candidates have used the term "law and order" almost 500 times in various contexts.15
For example, Donald Trump used the term “law and order” to emphasize his tough stance on
14 Michael Dawson, Black Vision: The Roots of Contemporary African American Political Ideologies. (London: The University of Chicago Press, 2003); Tasha Philpot. Race, Republicans, and the Return of the Party of Lincoln and the Return of the Party of Lincoln (Ann Arbor: University of Michigan Press, 2007). 15 www.Americanpresidencyproject.com
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illegal immigration and terrorism, whereas in 1968 Richard Nixon implied that law and order
meant fighting street-level crime, specifically in black and urban areas. In that same year,
independent presidential candidate George Wallace explicitly stated that law and order required
segregation and shooting protestors and rioters. Hubert H. Humphrey, also running for president
in 1968, believed that law and order required eliminating the social conditions that caused
delinquency. All of these various contexts make it unclear what law and order actually means. If
you do not have a standard definition for law and order, you cannot evaluate the development of
the law and order president.
Some of the literature in American political development suggests that law and order
means more than fighting street-level crime or garnering the votes of segregationists. Megan
Francis, in her book Civil Rights and the Making of American Modern State, argues that African
Americans petitioned several presidents and asked them to protect them from lynching. While
Francis does not use the words "law and order," her work shows that this is what the NAACP
was asking the president to maintain for African Americans.16 Hundreds of African Americans were being lynched each year with no response from state and local criminal justice institutions.
The NAACP asked the federal government and the president to use the executive branch to combat a crime that local authorities could not or would not stop. In other words, African
American groups urged the president to maintain law and order by protecting their civil rights.
Her work implies that the president’s power to maintain law and order could include protecting
African Americans from racial violence and may have had nothing to do with street-level crimes before Nixon's campaign.
16 Megan Francis, Civil Rights and the Making of the Modern American State, 1-35.
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Francis’s work provides further evidence that scholars must look beyond campaign
rhetoric to understand law and order. If scholars want to define law and order appropriately, then
they should review the laws that society creates, along with the institutions they develop to
enforce those laws. Based on the laws and government institutions created by the different
British North American colonies, America had two law and order systems— an episodic system
and a structural system. Colonial lawmakers developed the episodic law and order system to
punish offenses against the government (treason, insurrections), offenses against property and
property rights (e.g., robberies and homicides), and offenses against morality and religion
(breaking the Sabbath and adultery).17 Episodic law and order meant using government institutions to punish anyone that violated a set of laws related to morality, health, safety or property. Episodic law and order today is related directly to street-level crimes, such as robbery, homicide, theft or rape. The structural law and order system, on the other hand, meant using the militia, law enforcement, and the judiciary to prevent indentured servants and slaves from running away. Since it only applied to poor whites, indentured servants, and African slaves, it involved using government institutions and its criminal justice system to maintain a specific political, social, and economic hierarchy along racial or class-based lines. Structural law and order today means using government institutions and the criminal justice system to maintain or disrupt established racial or class-based hierarchies. While presidents such as Nixon and Trump ran their campaigns presumably to maintain episodic law and order, this dissertation shows that presidents have maintained structural law and order since the early 19th century when they began
to recover fugitive slaves.
17 Arthur Scott, Criminal Law in Colonial Virginia, (Chicago: The University of Chicago Press, 1930). 9
Research Questions and Methodology
This dissertation is guided by four main questions: (1) what does law and order mean; (2)
what is its connection to race; (3) when did presidents obtain the authority to maintain law and
order; and (4) which executive branch institutions have the responsibility to carry out the
president’s law and order obligations? I answer these questions using a path dependent
theoretical framework, which posits that “history matters” and that paths chosen or designed early in the existence of an institution tend to be followed throughout the institution’s development.18 I argue that Nixon ran on the law and order campaign because the institution of
the presidency had developed this power long before 1968. This argument is consistent with how
other formal and informal presidential powers developed over time. For example, the
"legislative president” refers to the president’s formal and informal power to influence the
legislative process using his skills to persuade others, his veto power, and his unitary ability to
set the agenda. The legislative president started in 1825 when President John Quincy Adams laid
out the first comprehensive legislative agenda.19 Andrew Jackson followed up on this approach
by becoming the first president to routinely use the veto to reject legislation he detested. Andrew
Johnson campaigned on the “swing around the circle” to generate public support for his agenda
and put pressure on Congress. By the time of Theodore Roosevelt’s “Square Deal” and Franklin
Roosevelt’s “New Deal” in the early 20th century, the president’s legislative powers had been
institutionalized and delegated to executive branch subordinates. The “rhetorical presidency” is
18 Sven Steinmo, “What is Historical Institutionalism” in Approaches in the Social Sciences, ed., Donatella Della Porta and Michael Keating., (Cambridge UK: Cambridge University Press, 2008); Paul Pierson, “Increasing Returns, Path Dependence, and the Study of Politics” The American Political Science Review, 94, No. 2 (Jun., 2000), pp. 251-267. 19 Sidney Milkis and Michael Nelson, The American Presidency, Origins and Development, 1776-2007, (CQ Press: Washington, DC), 116. 10
another example of presidential power developing over time. The rhetorical presidency refers to
the idea that popular rhetoric has become the principal tool of presidential governance.20
Presidents using rhetoric (or the bully pulpit) started in the early 19th century when they
employed surrogates and friendly newspaper outlets to get out their message. Andrew Johnson
took it upon himself to use popular rhetoric to campaign for his Reconstruction-era policies.
Johnson’s rhetoric failed him miserably and led to his impeachment in the House, leading his
predecessors to abandon this approach. However, Theodore Roosevelt and Woodrow Wilson
resurrected the use of popular rhetoric to advance their agenda in the early part of the 20th century. Presidents now routinely use rhetoric to advance their agenda and delegate this
responsibility to executive branch subordinates. I argue that the law and order presidency developed similarly: specifically, that the presidency obtained the authority to maintain law and order early in its history, that it institutionalized and expanded its practice and scope over time, and eventually it delegated that authority to executive branch subordinates.
To test my claim, I use mixed methods consisting of causal narratives, specifically a temporal analysis along with process tracing. Using a casual narrative provides the best method for examining the development of presidential power because it helps to identify “omitted variables” and "offer accurate explanations of important outcomes." The temporal analysis helps to capture the "slow-moving process" that typically accompanies the expansion of presidential power over time.21 Similarly, process tracing identifies the causal mechanisms for political
developments when the outcomes are known.22 It helps to uncover how changes in political
20 Jeffery Tulis, The Rhetorical Presidency, (Princeton: Princeton University Press, 1987). 21 Daniel Galvin, “Qualitative Methods and American Political Development,” in Oxfords Handbook of American Political Development, ed. Richard Valelly, Suzanne Mettler, Robert Lieberman (United Kingdom: Oxford University Press, 2016), 213. 22 Ibid., 214
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behavior, public policy or social movements affected political institutions over time. Using these
methods along with the collection of a range of legal material, presidential papers and records
from the Constitutional Convention captures the “process, context, sequence, and timing” that is
critical for explaining the development of the law and order president.23
Using these methods, I demonstrate that early presidents maintained structural law and
order, directing their State Departments, Attorneys Generals, U.S. marshals and the U.S. military in the recovery of fugitive slaves. After the Civil War, President Ulysses S. Grant employed his law and order authority for a different purpose, protecting the newly freed slaves’ rights granted under the Thirteenth, Fourteenth, and Fifteenth Amendments. However, in the post-
Reconstruction era, presidents expanded their power over episodic law and order while retreating from structural law and order altogether, leaving thousands of African Americans to the mercy of lynch mobs. After several decades of neglecting African Americans' request for protection from racial violence, presidents in the Civil Rights era used the law and order precedents set in the
1850s and 1870s to protect African Americans from racial violence. Presidents during this era also expanded the president’s authority over street-level crime by delegating additional authority to the FBI and using grants to direct the actions of local law enforcement. Therefore, by the time of Richard Nixon’s 1968 campaign, presidents and executive branch institutions had been maintaining law and order along racial lines for nearly two centuries—and it started not with general concerns about morality or safety but with the recovery of fugitive slaves. This framework connects the expansion of the president’s power to maintain structural law and order to the powers early American presidents exercised to recover fugitive slaves. It shows that every
23 Scott Frisch, Douglas Harris; Sean Kelly et al., "Taking the Road Less Traveled" in Doing Archival Research in Political Science, Scott Frisch, Douglas Harris; Sean Kelly et al. (Amherst: Cambria, 2012), 11.
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change to the law and order presidency throughout history was affected by the original decision
to use executive branch institutions to maintain structural law and order in this way. In short, this dissertation demonstrates how 19th-century presidents contributed to the immense power that presidents exercise over federal law enforcement today and how the politics of race profoundly affected the institutional development of the presidency.
Contribution to Political Science
This dissertation research contributes to political science because it uses a theoretical
framework to reveal important facts about presidential power, race and the development of
America’s political institutions. For several decades, presidential scholarship has focused on the
president’s power to act unilaterally through executive orders or their power to convince
Congress to enact their agenda. Even though political scientists have found new and interesting
ways to test these two existing frameworks, presidential scholars have never explored how race
shapes presidential power. The establishment of racial hierarchies in conjunction with African
Americans’ fight for equality has shaped America’s history from the very beginning. Since
presidential scholars have not asked how these racial battles shape presidential power, political
science has left a significant gap in our understanding of presidential power. This dissertation
fills this gap by explaining how the politics of race shaped presidential power and how presidents
use their power over law enforcement to shape the lives of African Americans.
This dissertation also contributes to political science by demonstrating that presidents
serve as America’s chief law enforcement officer. In a liberal democracy, the government’s most
significant power derives from its authority to arrest, detain and prosecute U.S. citizens. When
scholars argue that a president’s power comes from their ability to persuade Congress to enact
13 legislation, they ignore the significance of a president having the power to direct an investigation or arrest a U.S. citizen. When scholars argue that a president’s power comes from the use of executive orders and signing statements, they ignore the significance of a president verbally setting the investigative agenda for the Justice Department. This dissertation highlights this significance by exploring this power starting in the 19th century.
This dissertation proceeds as follows. Chapter 1 traces law and order from the first days of the Virginia colony to the Constitutional Convention. It defines and identifies the two law and order systems created during the colonial era, establishes its connection to race, and explains how the Framers institutionalized it by adding the fugitive slave clause to the U.S. Constitution.
Chapter 2 explores the development of the president’s power to maintain structural law and order starting in 1790, when early American presidents used their executive branch institutions to recover fugitive slaves at first internationally and later domestically. Chapter 3 explores how
Abraham Lincoln changed America’s structural law and order system with his Emancipation
Proclamation, as it promised to use the executive branch and the military to uphold the freedom of the emancipated slaves. It also shows how Andrew Johnson later abandoned that promise, leaving African Americans to the mercy of their former slave masters. Chapter 4 explores how the law and order presidency durably changed during the Reconstruction era when Congress empowered presidents to protect African Americans from racial violence and police brutality.
Chapter 5 explains how Ulysses S. Grant used the Justice Department to pursue and prosecute the Ku Klux Klan, in the process expanding federal authority. Chapter 6 tracks the initial development of the president’s power to combat street-level crime in the early 20th century while retreating from protecting African Americans from racial violence and police brutality. During this period, presidents created new investigative bodies and delegated additional authority to
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federal law officers without congressional input. Chapter 7 explores the law and order presidency
from Franklin D. Roosevelt to John F. Kennedy. It shows how the presidency had taken on the
full responsibility for combatting street-level crime and protecting African Americans from
racial violence. Chapter 8 provides evidence that Lyndon B. Johnson and Richard M. Nixon shared the same law and order philosophy but used different political strategies to communicate their approach. It demonstrates the importance of evaluating the policies of the law and order president and not their rhetoric. The conclusion brings together the evidence and shows how the politics of race led to the development of the law and order president.
Chapter 1: Law and Order: From the Colonial Era to the U.S. Constitution
Structural law and order began in America during the colonial era when lawmakers used the criminal justice system to prevent indentured servants and slaves from escaping. This criminal justice system helped to establish and define law and order within the British North
American colonies. However, the system had a significant flaw that threatened to undermine slavery. Colonial lawmakers did not have a mechanism to recover fugitive slaves that escaped into other colonies. This problem grew exponentially worse during the Revolutionary War as slaves routinely escaped behind British lines. After the Revolutionary War, slaves continued to flee into neighboring states, causing major problems as they landed into places that no longer recognized slavery. This major flaw in the system led the delegates to the Constitutional
Convention to nationalize structural law and order by including a fugitive slave clause into the
U.S. Constitution. However, the delegates wrote the clause in vague terms and failed to designate which level of government, federal or state, bore the responsibility for the recovery process.
Therefore, the antecedent to the president’s power to maintain structural law and order emerged in the colonial era but became institutionalized when the delegates added the fugitive slave clause to the U.S. Constitution.
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Structural Law and Order in the Colonial Era
Virginia Governor De Le Warr created the first structural law and order system during the initial years of the Virginia colony because his workers continued to run away. The Virginia
Company brought workers to Virginia with a promise that they would receive “houses to live in, vegetable gardens and orchards, and also food and clothing at the expense of the Company.”
However, the Virginia Company ultimately failed to keep its promise and instead worked the settlers beyond measure, leading to death, starvation, and disease.1 From 1607 to 1609, these
living conditions reduced the settlement from 500 men to 60, and some of the settlers resorted to
cannibalism, eating "dogs, cats, mice, boots, shoes, and other leather goods" to survive. The
tough living and working conditions led workers to run away to the Indians. When Governor De
La Warr took over in 1610, he responded to this crisis by passing a series of laws that prohibited
workers from running away. When workers tried to escape to the Indians, the Governor
sentenced them to death by starving, hanging or shooting them. 2 Likewise, when several miners
conspired to run away, the “Governor caught the miners, called for the marshal to be executed
and hung one of the fugitives.”3 The abuse of workers continued even as they began to import
indentured servants to help cultivate their newly discovered tobacco crop.
1 Abbott Smith, Colonist in Bondage White Servitude and Convict Labor in America, (Chapel Hill: University of North Carolina Press, 1947) 9. 2 Daniel Meaders, Dead or Alive Fugitive Slaves, and White Indentured Servants Before 1830, (New York: Garland Publishing Inc, 1993), 55. 3 Arthur Scott, Criminal Law in Colonial Virginia, 142.
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When the settlers discovered tobacco, it created an instant demand for more workers.4
The Virginia Company met this demand by selling indentured servants to the original settlers.
However, the abuses of indentured servants developed almost immediately and led them to run
away and escape their work. Governor Dale, the replacement for Governor De Le Warr, created
laws to keep all the servants in order. In 1618, when workers again tried to run away to the
Indians, the Governor responded by hanging, burning and shooting those fugitives to death. The
Virginia Company applauded Governor Dale for reclaiming those “idle and disorderly people”
and forcing them to labor.5
The colonial elite brought this structural law and order system from England along with
an ideological belief that lower classes of people should conduct manual labor. The upper class
believed that the lower classes should do hard labor but preferred idleness and laziness. In 1495 and 1563, England's Parliament passed the Statute of Artificers and the Statute of Laborers respectively, which required people to work from five in the morning to seven at night with no more than a two-hour break. The Preamble to the Statute of Laborers claimed that "laborers
waste much part of their day… in late coming into their work, early departing therefrom."
Richard Hakluyt, the intellectual architect for England’s initial colonization of Virginia in 1588
and 1607, wrote that the idle people in England were burdensome “and often fall to pilferage and
thievery.” He recommended sending these individuals to the Colony and “set [them] to work.”
In 1607, the colonists brought over this ideology that lower classes of people should conduct the manual labor but would refuse to work because of their inherent laziness. In contrast, the elite
4 Daniel Meaders, Dead or Alive, 57-58. 5 Susan Kingsbury, The Records of the Virginia Company of London Vol I, (Washington, DC: Government Printing Office, 1906), 267.
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gentlemen class of England was not expected to do manual labor. 6 A number of these
gentlemen migrated to the colony, lacked experience working, and likely contributed to the
Virginia Colony starving to death in the winter of 1609. John Smith complained that year that he
“could never get any real work from more than thirty out of the two hundred settlers,” arguing that the gentlemen class had no experience with manual labor. According to Edmund Morgan, over 32 percent of the initial settlers to arrive between 1607-1609 came from the gentlemen class. 7 This dynamic made it painfully clear that the survival of the colony depended on a lower
labor class that would face criminal sanctions if they ran away from their work.
When the Virginia Assembly met for the first time in 1619, in part to ensure the
compliance of indentured servants, they built on the harshly enforced rules of Governors Dale
and De Le Warr. The Assembly “provided for the recording and enforcing of contracts made
with indentured servants before their departure from England.” They also created a registration
for indentured servants, proposed whipping servants for swearing or “Sabbath-breaking” and
sentenced a servant of Captain William Powell to “stand four days with his ears nailed to the
pillory for committing various misdoings.”8 They also passed a law that stated, “If a servant
willfully neglects his master’s commands, he shall suffer bodily punishments.”9 In 1623, the
Virginia Assembly adopted a law that said, “No person within this colony upon rumur [sic] of
supposed change and alteration, presume to be disobedient to the present government, nor servants to their private officers, masters, or overseer at their uttermost peril.”10 Servants had to
6 Edmund Morgan, American Slavery American Freedom, (New York: W.W. Norton & Company Inc., 1975), 63. 7 Ibid., 85 8 Abbot Smith, Colonists in Bondage, 227. 9 James Curtis Ballagh, White Servitude in the Colony of Virginia, (New York: Burt Franklin, 1969), 45. 10 Antonio Bly and Tamia Haygood, Escaping Servitude A Documentary History, (Lanham: Lexington Book, 2015), 5.
19
“faithfully and obediently…do all their masters and owners just and lawful commands. If any
servant shall resist the master or mistress, or overseer, or offer violence to any of them, the said
servant, for every such offense shall serve one whole year after the time” of his contract. 11 As other colonies emerged in the 17th century, they soon adopted these laws and attitudes about
indentured servants. In the preambles of these laws, lawmakers referred to indentured servants
and poor whites as “idle and disorderly,” “deadbeat fathers, and husbands,” “idle, drunken and
swearing persons.” They accused them of “neglecting labor,” and “having illegitimate
children.”12 All of this name calling had a larger purpose. It justified the creation of criminal
laws that would force the "lazy" lower class people to work.
This name calling also allowed lawmakers to obscure the fact that white indentured
servants resisted their labor responsibilities because they experienced harsh labor conditions, had
short life expectancies, lived under the full control of their masters, and in many cases had been
kidnapped, forced or tricked into migrating to the British North American colonies.13 Masters
also controlled every aspect of their life, including their ability to marry and have children.14
Their masters treated them like chattel and could sell them without their consent, dispose of them
through a will and gamble them away in card games. 15 In 1623, a servant from Virginia wrote,
“I thought my head had been able to hold so much water as hath and doth daily flow from mine
eyes.” The court records in Maryland show that a “significant number of servants committed
11 Virginia Statutes at Large, Hening, OCT. 1705 XLVIII §VII See Appendix A no. 1 (hereafter Virginia) 12 James Wilson, Laboring and Dependent Classes in Colonial America, 1607-1783, (New York: Frederick Unga Publishing Co, 1931), 146, 150; Laws of North Carolina, 1755, VI. 13 Abbot Smith, Colonists in Bondage; David Roediger, The Wages of Whiteness Race and the Making of the American Working Class (New York: Verso, 1999), Daniel Meaders, Dead or Alive, 57; Eugene McCormac, White Servitude in Maryland, 1634-1820, (Baltimore: John Hopkins University Press, 1904), 53; James Curtis Ballagh, White Servitude in the Colony of Virginia. 14 Sharon Salinger, "To Serve Well and Faithfully" Labor and Indentured Servants in Pennsylvania, 1682- 1800, (Cambridge: Cambridge University Press, 1987), 25. 15 Abbott Smith, Colonist in Bondage, 322; Ballagh, White Servitude in the Colony of Virginia, 44
20 suicide under their burdens.” Some servants existed in despair because they had the harsh responsibility of preparing new land for planting. This required them to clear trees and plow grounds without good plow tools. This task seemed almost impossible for some of them as they had no previous experience with field labor.16 These harsh conditions led indentured servants to run away and escape their duties.
Lawmakers responded by establishing active patrols and required servants to carry around certificates or passes every time they left their owner’s land. 17 Poor whites and small farmers had to remember to bring their passes or face the possibility of prison. Lawmakers paired the pass system up with a very active patrol system. The various colonies paid their patrols two hundred pounds of tobacco for each fugitive servant they recovered. 18 This system effectively made every poor white person a suspected fugitive.19 Patrols could likely identify poor whites because, as Ira Berlin argues, the master class worked hard to distinguish themselves from servants by their “fine clothing.”20 To make it easier to spot runaways, the Assembly declared that masters have to keep the “haire” {sic} of their troublesome servants “cut.”21
Therefore, the lawmakers and patrols could easily profile and arrest any poor white person with short hair and pitiable looking clothes.
The colonists did not just rely on proactive measures to prevent servants from escaping, they also severely punished servants that ran away. In 1642, Virginia declared that all runaways would have to double their amount of time served—and if they ran away a second time, they
16 Ibid., 258 17 James Ballagh, White Servitude in the Colony of Virginia, 54; Virginia, III. 271; IV., 173; IX., 187. 18 Antonio Bly and Tamia Haygood, Escaping Servitude, 15. 19 Virginia, Chapter XLIX §XXI, October 1705. 20 Ira Berlin, Many Thousands Gone, (United States of America: Library of Congress, 1998). 1-99. 21 Virginia, Act I, 1669.
21
would have an “R” branded on their cheek. 22 Maryland in the same year made it a felony and
punishable by death for a servant to “absent himself from his master with the intent to leave the
province.”23 South Carolina passed laws that sentenced servants to “serve twenty-eight days for every day they so absent themselves from their master.”24 People that assisted runaway servants
could pay up to “forty pounds of tobacco for each day the servant remained at large.”25 The law also allowed masters to use corporal punishment against their runaways even though the government already made them serve a longer term of service.26 However, “whippings,
additional years of service, branding, and even servitude in irons could not stop indentured
servants from running away.”27 The Virginia Assembly complained that all of their “good
Lawes…to prevent runaway servants…in great parte [has] proved ineffectuall, chiefly through
the wickedness of servants who at and before their arrival plott and contrive how they may free
themselves from their masters {sic}.”28 Colonial lawmakers found it incredibly difficult to
control their indentured servants because of their constant attempts to escape. They also had a
difficult time controlling them because indentured servants by law could sue their masters for
mistreatment. Lawmakers in the various colonies gave indentured servants the power to sue their
masters for mistreatment because they feared a class rebellion. They also passed laws that
required masters to provide “wholesome and competent diet, clothing and lodging” for white
indentured servants.29 When a master failed to provide these things, indentured servants could
sue them in court and at times receive their freedom. This dynamic made it risky to rely on
22 Virginia, Act XXII, March 1642-3. 23 Eugene McCormac, White Servitude in Maryland, 163-164. 24 Warren Smith, Servitude in Colonial South Carolina, (Columbia: R.L. Bryan Company, 1961), 74. 25 Virginia, Act XXII, March 1642-3. 26 Virginia, Act IV, 1668. 27 James Ballagh, White Servitude in the Colony of Virginia 55. 28 Virginia, Act VIII, October 1669. 29 Virginia, Oct. 1705, XLVIII §VI.
22 indentured servants as their status as white Christians gave them the right to testify and sue their master for “arbitrary and unnatural cruelties.”30 These circumstances made it clear that the colonists could not rely on indentured servants because they could not continue to justify dehumanizing white Christians; the cost of maintaining indentured servitude made it less lucrative than slavery, and indentured servants kept running away. While it would cost planters more to purchase slaves, they could make slaves work harder than their servants and did not have to provide the same level of food and shelter. 31 Therefore, lawmakers imported more slaves than indentured servants, racialized slavery through criminal laws and imposed hereditary bond- servitude on all Africans.32
Structural Law and Order and Recovery of Fugitive Slaves
When the first Africans arrived in Virginia in 1619, the colonists existed mostly through a class-based system of indentured servants and landowners. These slaves, also known as the
Charter Generation, had spent time in European countries before arriving in Virginia, and they understood the English language and culture. Some of them leveraged their prior experience with the English culture to gain land, independence, and freedom. Colonial lawmakers also left their labor status undefined because they made up such a small portion of the labor population. While masters maintained absolute domination over their slaves, they at times allowed them to farm independently and earn their own money. By allowing slaves to farm independently, it allowed them to feed and clothe themselves and potentially purchase their own freedom. Some slaves,
30 Eugene McCormac White Servitude in Maryland 1634-1820, 234 31 Stephen Whitman, Challenging Slavery in the Chesapeake, (Baltimore: Maryland Historical Society, 2007), 6-7. 32 Bruce Baum, The Rise and fall of the Caucasian race A Political History of Racial Identity (New York: New York University Press), 49.
23
like Anthony Johnson, took advantage of this opportunity. Johnson arrived as a slave in Virginia
around 1621, but purchased his freedom in 1635, accumulated over 250 acres of land and bought
his own slaves by 1651. Since the colonists existed on a class-based system, and not yet a race-
based system, former slaves owned other slaves during this period. Another slave named Francis
Paine entered the Virginia Colony as a slave in 1637, and by 1656 he had enough money to
purchase the freedom for himself and his entire family. This early system of slavery left open a
slight and small chance of freedom. It allowed nearly one-fifth of the slaves that arrived with the
Charter Generation to receive their freedom and led to free Africans making up 30 percent of the
Northampton Virginia population by 1668.33
Some of the leading visionaries of the British North American colonies envisioned this
type of society in which Africans would have the same labor arrangement as indentured servants.
Africans and Englishmen had worked together forty years before the establishment of the
colonies to overthrow Spanish explorers in Panama. As Edmund Morgan points out, the alliance
between Africans and the English "seemed untroubled by racial prejudice." English leader
Richard Hakluyt advocated for a multi-racial colony that included free Africans, free Indians and the English poor. From his perspective, the Africans would find themselves fed, "warmly clothed, well lodged by, and made free from the tyrannous Spanyards {sic}."34 This attempt of a
multi-racial colony indicated that the English did not yet use race as a primary marker for
inferior or superior people. Instead, they believed in the inferiority of some non-English, and all
non-Christians. This belief meant that a person’s status with God determined their place in
society’s hierarchy. Many Africans in that Charter Generation converted to Christianity when
33 Ira Berlin, Many Thousands Gone, 1-99. 34 Edmund Morgan, American Slavery American Freedom, 13- 17.
24
they entered the American colonies as a method to escape slavery, move up this hierarchy and
own land.
Since the colonists did not construct their world around race, the word "white" as a racial
category did not emerge in the colony of Virginia for over sixty years. This political dynamic
means that when Africans arrived in Virginia, “there were no white people there.” 35 Since race
played little to no role in the interaction of poor whites and blacks, white servants and African
slaves partied together, gambled together and married each other. Three of the most well-known
free black families in the colonial era all involved interracial marriages. The evidence shows that
blacks and whites genuinely enjoyed each other’s company prior to the racialization of slavery.
Behind closed doors, according to Ira Berlin, “black and whites joined together to drink, gamble, frolic, and fight.” Poor whites and Africans did not treat each other differently because "the boundary between slavery and freedom remained permeable," and they labored in the fields together. While the "stigma of color may have condemned some black people to a lifetime of
servitude, the stigma of poverty, criminality, immorality, uncertain lineage, and alien religion
condemn most European immigrants” to suffer from the same labor conditions as the slaves.36
This social and political development created a commonality among poor whites and Africans.
The racialization of slavery and the criminal legislation that sustained the institution severed ties between poor whites and blacks and linked law and order and race in America.
Colonial lawmakers started with gradually implementing lifetime slavery. The move toward lifetime slavery became apparent when a Virginia Council sentenced a runaway slave named
John Punch to serve the rest of his life as a slave—while only sentencing his two white co-
35 Theodore Allen The Invention of the White Race Volume I: Racial Oppression and Social Control Volume I. (London: Verso, 1994), p. X. 36 Ira Berlin, Many Thousands Gone, 35-45.
25
conspirators to an additional year of service.37 Twenty-two years later, Virginia lawmakers stated that “Bee [sic] it enacted that in case any English servant shall run away in company with any
Negroes who are incapable of makeing [sic] satisfaction by addition of time… (They) shall serve for the time of the said Negroes absence.” This statute indicates that by 1662, the colonists treated Africans as lifetime slaves—which explains why slaves could not "make satisfaction" by serving additional years.38 In the same year, the Virginia Assembly declared that “all children
borne [sic] in this country shall be held bond or free only according to the condition of the
mother.”39 This statute created lifetime slavery in Virginia. Maryland followed Virginia and
instituted lifetime slavery one year later.40 As lawmakers racialized slavery, they had to declare
in 1667 that “baptisme doth not alter the status” of slaves.41 This law meant that African slaves
could no longer use their conversion to Christianity to escape slavery.
Colonial lawmakers also racialized slavery by codifying criminal laws based on skin
color. The House of Burgess stated that “no Negro…” could own a Christian servant “except of
their own complexion.” 42 This law meant that Africans could never own whites, but whites
could always own Africans. Before this statute, some prominent black landowners owned slaves
and white indentured servants. This statute informed society that the class status of wealthy black
landowners still made them less than the white indentured servants that had previously served
them. Lawmakers also prohibited masters from whipping their white servants naked, while no
37 Paul Finkelman, Slavery in the Courtroom, (Washington, DC: Library of Congress, 1985); Minutes of the Council and General Court of Colonial Virginia, 1622-1632, 1670-1676… ed H.R. McIlwaine (Richmond Colonial Press, 1924), 466. 38 Virginia, March 1662 Act CII; Sally Hadden, Slave Patrols Law, and Violence in Virginia and the Carolinas, (Cambridge: Harvard University Press, 2001) 25. 39 Virginia, Act XII, December 1662 . 40 Maryland Proceedings and Acts of the General Assembly October 1663, 533. 41 Virginia, September 1667 Act III. 42 Virginia, October 1705, Ch. XLIX § XI.
26
such law existed to protect Africans.43 Prior to this statute, lawmakers did not dissuade masters
from corporally punishing their white servants. This law told society that the criminal justice
system had to treat whites differently and better than blacks. The Virginia assembly stated that a
master could castrate a slave if they raped a white woman. However, lawmakers never developed a law protecting black women from rape, even though they suffered from this violence more than any other group.44 This law solidified African women’s inferior status in society and indicated that their lives did not matter. Eventually, a slave could receive a death sentence for simply
hitting a white person even if the white person initiated the violent confrontation.45
Lawmakers also decided to empower slave owners to carry out their own system of punishment to prevent slaves from escaping. In 1707, Robert Carter received permission from the court to cut off the toes of two of his fugitive slaves. Court orders like this forced the
Virginia Assembly to “absolve owners and surgeons of manslaughter” when dismemberments led to the death of their slaves.46 Years later, Robert Carter once again asked and received
permission to cut off the toes of two of his fugitive slaves. His repeated requests indicate that
cruelty alone could not dissuade slaves from escaping. It also shows that the colonial era criminal
justice system played a significant role in trying to stop slaves from escaping. In 1745, a South
Carolina master put out a notice for his fugitive slave that said that he would give "Ten Pounds"
to any man that "brings me his head." This dead or alive advertisement was the first of its kind in
South Carolina. Likewise, a master from North Carolina put out an announcement permitting
"any person" to "kill or and destroy" his slave if “he did not surrender.” These dead or alive
43 Virginia, October 1705, Ch. XLIX § VII. 44 Virginia, November 1769, Ch. XIX § I. 45 Georgia, An Act for Ordering and Governing Slaves, May 1770, § XXIII. 46 Virginia, May 1723, IV §XIX.
27
announcements reflected the master’s desperation and the ineffectual approach masters took to recover their slaves. From about 1729 to 1800, the local newspapers in the South ran about 95 dead or alive notices, which accounted for about 3% on average of all their fugitive slave advertisements.47
These slave advertisements indicate that lawmakers left catching and punishing slaves
largely to the discretion of the master. However, lawmakers also believed that fugitive slaves
posed a threat to the established hierarchy and developed additional criminal laws and processes
to stop escapes. They established curfews on slaves, empowered militias and patrols to catch
slaves, and created special police night watchmen.48 These criminal laws gave the patrols and
their deputized citizens the right to “beat, maim, and even kill” any slave that resisted capture.49
Lawmakers rewarded every white person that caught and returned fugitive slaves with two
hundred pounds of tobacco. South Carolina paid money out of its treasury to anyone that brought
the “scalps of such Men or Women Negro slaves” that ran away from their master.50 These laws
racialized slavery, and treated every African, whether free or not, as a suspected fugitive slave.51
This political, social and economic development meant that an African’s skin marked them as
inferior and this led to the symbiotic development of structural law and order and white
47 David Meaders, Dead or Alive, 26. 48 Sally Hadden, Slave Patrols, 15. 49 Georgia, An Act for Ordering and Governing Slaves, May, 1770 § V and An ACT for Regulating a Work Hours, for the Custody and Punishment of Negroes; Virginia, Act VIII September 1672; Glenn McNair, Criminal Injustice: Slaves and Free Blacks in Georgia's Criminal Justice System, (London: University of Virginia Press, 2009), 60. 50 Warren Smith, Servitude in Colonial South Carolina, 78. 51 Sean P. Harvey, Ideas of Race in Early America Subject: Early National History, Slavery and Abolition, Native American History in Oxford Research Encyclopedia online,http://oxfordre.com/americanhistory/view/10.1093/acrefore/9780199329175.001.0001/acrefore- 9780199329175-e-262
28
supremacy. Therefore, the colonial lawmakers’ decision to use the criminal justice system to
racialize slavery inextricably linked structural law and order to race in America.
Nationalizing Structural Law and Order in the U.S. Constitution
African slaves often ignored the danger of these criminal laws and continued to escape to
freedom during the colonial era, the Revolutionary War, and under the Articles of Confederation.
Even though colonial lawmakers designed their law and order systems to prevent slaves from
escaping, fugitive slaves learned that they could reach their freedom by leaving their colonial or
state boundaries.52 The individual colonies and states tried to forge intercolonial and state
agreements to return fugitive slaves and servants. In 1643, the New England Confederation of
Plymouth (Massachusetts, New Haven, Connecticut) formed an agreement to deliver up any
fugitive slaves or servants.53 In other instances, the colonies had to rely on each other's
goodwill. For example, the Council of Maryland sent a letter to the New Netherlands (New
York, New Jersey, and Delaware) requesting that they return any fugitive indentured servants
and slaves. The New Netherlands complied with the request. In 1659, however, the New
Netherlands and Maryland planters had a significant dispute over the fugitive slave recovery
process and threatened to set free any fugitive slaves that entered their colonial borders.54
Fugitive slaves also took advantage of the Revolutionary War and escaped behind British
lines. Lord Dunmore, the Royal Governor of Virginia, and Sir Henry Clinton encouraged
thousands of fugitive slaves to flee behind British lines.55 Thousands of fugitive slaves not only
52 Akhil Amar, American Constitution A Biography, (New York: Random House, 2005), 83, 258 53 Marion McDougall Fay House Monographs No. 3 Fugitives, 1619-1865, (Boston: Ginn & Company, 1891). 54 Eugene McCormac, White Servitude in Maryland, 1634-1820, 52- 53. 55 Cassandra Prybus, Epic Journeys of Freedom Runaway Slaves of the American Revolution and their Global Quest for Liberty, (Boston: Beacon Press, 2006), 7.
29
escaped with Great Britain but left for England after the war concluded. The former colonists
now knew that they could lose their slaves internationally as well as domestically. The
Revolutionary War also produced a new line of thinking about the morality of slavery. The
natural rights philosophy that justified the American Revolution also brought doubts about the
legitimacy of slavery.56 The revolutionaries claimed that their lack of voting rights and their taxes made them slaves. John Adams exclaimed that “We are slaves,” and “Briton is our
oppressor.”57 George Washington said that “the once happy and peaceful plains of America are
either to be drenched in blood or inhabited by slaves.”58 John Jay wrote to the citizens of Britain,
comparing the colonists’ conditions to slaves almost thirty-three times.59 These leaders continued
to equate their condition under Britain to slavery, and this put the morality of slavery on trial.
Northerners and Christian ministers began to preach against this hypocrisy. Massachusetts
preacher Samuel Cooke proclaimed in a sermon, “We patrons of liberty, have dishonored the
Christian name, and degraded human nature.”60 Baptist preacher John Allen said, “What is a trifling three-penny duty on tea compared to the inestimable blessing of liberty to one captive?”61
Sermons like these led Americans to emancipate their slaves throughout the North.62
The nation now faced an impossible dilemma because all the Northern States had
implemented gradual emancipation and did not have any process for returning fugitive slaves
that escaped from the South. Slaves had a larger incentive to escape out of their state boundaries
56 Stephen Whitman, Challenging Slavery in the Chesapeake, 20. 57 Bernard Bailyn, The Ideological Origins of the American Revolution, (Cambridge: The Belknap Press of Harvard University Press, 1967), 233. 58 Edmund Morgan, American Slavery, 2. 59 John Jay, The Correspondence and Public Papers of John Jay, ed. Henry P. Johnston, A.M. (New York: G.P. Putnam's Sons, 1890-93). 4 Vols. 12/19/2018. https://oll.libertyfund.org/titles/2327 60 Ibid., 239 61 Ibid., 241 62 Virginia, May 1723, IV §XVII.
30 and run to free territories. Fugitive slaves took advantage of this breakdown in the system and made their way to Pennsylvania, New York, and Massachusetts. States like Virginia consistently lost slaves into free territories because they shared a porous border with Pennsylvania. The two maps below show the thin line between states like Virginia and Pennsylvania and the thin line between slave and free states overall (See Figures 1-1 and 1-2).
31
Figure 1-1 Source: Provided by Creative Commons
32
Figure 1-2 Source: Charles Kendall Adams, A History of the United States
33
The Continental Congress tried to address the issue when it passed the Northwest
Ordinance Act, which said “That any person escaping into the same, from whom labor or
service is lawfully claimed in any one of the original States, such fugitive may be lawfully
reclaimed and conveyed to the person claiming his or her labor or service as aforesaid.”63 This
law had no enforcement mechanism or institution that could oversee the slave recovery process,
however. Two months later, Constitutional Convention Delegates Pierce Butler and Charles
Cotesworth Pinckney proposed adding a fugitive slave clause to the Constitution. After a limited
debate, the Convention adopted the clause using language similar to the Northwest Ordinance
Act.64 The Fugitive Slave clause says, “No Person held to Service or Labour in one State, under
the Laws thereof, escaping into another, shall in Consequence of any Law or Regulation therein,
be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to
whom such Service or Labour may be due.”65 This clause meant that no state could use its anti- slavery laws to free a fugitive slave and that the state had an obligation to “deliver up” the
slave.66 To emphasize the significance of the fugitive slave clause, the North Carolina Delegates
to the Constitutional Convention boasted that “The Southern States also have a much better
Security for the return of slaves who might escape than they had under the original
Confederation.”67 James Madison likewise told his State Convention, “At present, if any slave
63An Ordinance for the government of the Territory of the United States northwest of the River Ohio 64 David Ericson, Slavery in the American Republic Developing the Federal Government, (Lawrence: University Press Kansas, 2011), 83. 65 U.S. Const. Art. IV, § 2 Clause 3. 66 Akhil Amar, American Constitution, 257. 67 John O. Kaminski, A Necessary Evil Slavery and the Debate Over the Constitution, (Madison: Madison House, 1995), 162.
34 elopes to any of those states where slaves are free, he becomes emancipated by their laws.”68 He argued that the delegates “expressly inserted (the fugitive slave clause) to enable owners of slaves to reclaim them.”69 George Nicholas, a Virginia House Delegate, bragged that Congress could not permit the harboring of slaves as an “express clause of the Constitution” since the fugitive slave clause forces the states to deliver up all escaped slaves.70 A mysterious writer, writing under the banner of “A Native of Virginia,” explained the impact of the fugitive slave clause: “At present, slaves absconding and going into some of the Northern states, may thereby effect their freedom. But under the Federal Constitution they will be delivered up to the lawful proprietor.”71 Moses Brown, a prominent Rhode Island Quaker, maintained that the fugitive slave clause would “keep Massachusetts from being as a City of Refuge for the poor blacks."72
However, some delegates to the state ratifying conventions did not believe that this clause applied to slaves. The delegates at North Carolina’s State Ratifying Convention expressed concern over the fugitive slave clause because it failed to mention slavery by name. However,
Mr. Iredell, a delegate at the state convention, emphasized that the clause will ensure the return of fugitive slaves: “The Northern delegates, owing to their particular scruples on the subject of slavery did not choose the word slave to be mentioned. Though the word slave is not mentioned, this is the meaning of the fugitive slave clause.” 73 Iredell’s explanation shows that the
Constitutional Convention purposefully made the fugitive slave clause vague because Northern delegates did not want to use the word slave in the Constitution. To eliminate the possibility of
68Akhil Amar, American Constitution, 258. 69 John Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, Vol. III, 453. 70 John O. Kaminski, A Necessary Evil Slavery, 178. 71Ibid., 182 72 Ibid., 70 73 John Elliot, The Debates in the Several State Conventions, 175.
35
confusion, Edmund Randolph, delegate to the Virginia State Ratifying Convention, said that
“everyone knows that slaves are (the ones) held to service and labor.”74 These discussions foreshadowed the confusion over the enforcement of the fugitive slave clause.
While the delegates at the various state ratifying conventions argued over the wording of the clause, they never discussed which level of government had the responsibility for recovering the fugitive slaves. Did this responsibility belong to the state or the federal government? Did this responsibility belong to the president or the various governors? They never asked this question because the delegates did not believe that the federal government should or would have a role in recovering fugitive slaves. The delegates did not put the fugitive slave clause either in Congress' enumerated provisions in Article I or the executive powers of Article II. Instead, they put the clause in Article IV, which focuses primarily on "state, statehood and interstate comity."75 The
delegates wanted to force the states to work together in maintaining structural law and order.
Legal historian Paul Finkelman disagrees with the notion that the delegates never
intended to give the federal government a role in recovering fugitive slaves. Finkelman argued
that the three-fifths clause and the Electoral College empowered Southern states by ensuring that
the president would come from a pro-slavery state. The pro-slavery structure of the Constitution,
according to Finkelman, almost guaranteed that the president would eventually adopt policies to
protect slavery.76 However, the debates about the president’s powers as commander-in-chief shows that the delegates never envisioned a president that would recover fugitive slaves.
74 Ibid., 599 75 Robert Goldwin and Art Kaufman, “Slavery, the Framers, and the Living Constitution,” in Slavery and its Consequences, ed. Robert Goldwin, et al. (Washington DC: American Enterprise Institute for Public Policy Research, 1988); David Ericson, Slavery in the American Republic, 89 76 Paul Finkelman, “The Centrality of Slavery in American Legal Development." In Slavery and the Law. Madison: Madison House Press, 1997.
36
The delegates to the Constitutional Convention learned that they could lose their slaves
internationally when Great Britain took four thousand fugitive slaves with them after the
Revolutionary War. The Continental Congress tasked Commander-in-chief George Washington
with recovering these slaves from Britain’s Commander Sir Guy Carleton. While Washington
failed at this mission, the delegates knew from the War that the Commander-in- Chief could
recover fugitive slaves internationally. Since the delegates had this experience, it would have
been an important oversight for the delegates to ignore this issue during the Convention. The
delegates also could not afford to ignore the fugitive slave issue because foreign countries and
sovereign Indian tribes surrounded the United States. Spain controlled territory that spanned
from Eastern Florida through the entire Louisiana territory. The Florida border allowed fugitive
slaves to routinely escape from South Carolina and Georgia. Since the United States shared
borders with so many foreign countries and entities, it would have been essential to determine if
the commander-in-chief had the power to recover fugitive slaves internationally. However, the
delegates never discussed the issue. At most, they discussed the president's power to put down
slave insurrections. Mr. Henry expressed his concern that the Constitution as constructed would prohibit states from protecting themselves in the case of slave insurrections. James Madison reminded him that the Constitution does not prevent states from quelling slave insurrections.
Rather, it gives states additional security by empowering the president to control the militia.
States could continue to use their militias to stop slave insurrections and the “general government
(president)” would aid them.77 While this discussion had tremendous relevance to the slave
issue, the delegates never discussed the president's role in recovering fugitive slaves
internationally. Taken together, the vaguely written fugitive slave clause and the Constitutional
77 John Elliot, The Debates in the Several State Conventions, 416.
37
Convention debates strongly suggest the delegates never intended to give the president a role in
recovering fugitive slaves. This political development means that the president's eventual role in
recovering fugitive slaves emerged either because of an act of Congress or unilateral initiative.
Conclusion
Structural law and order in America officially began during the colonial era when
lawmakers created a structural law and order system to prevent indentured servants and slaves from running away. However, slaves learned that they could achieve their freedom by escaping into other states, especially states that had passed emancipation laws. This shortcoming in the structural law and order system forced the delegates to the Constitutional Convention to nationalize the structural law and order system by including the fugitive slave clause. They created this clause to force Northern states to cooperate in the fugitive slave recovery process.
However, they wrote the fugitive slave clause in vague terms and never discussed which level of government would have the responsibility to enforce the law. The Constitutional Convention debates about the president's powers as commander-in-chief show that the delegates never intended to give the federal government or the president the power to recover fugitive slaves.
This era provides some critical answers about the politics of race and the development of the law and order presidency. It demonstrates that the resistance of African slaves and their attempt to escape to freedom forced lawmakers and the delegates to the Constitutional
Convention to establish a structural law and order system. It also demonstrates that law and order in America is made up of two systems—episodic and structural. Episodic law and order generally applied to everyone and focused on punishing individuals for offenses against property, life, health, and safety. Structural law and order meant using the militia, law
38 enforcement, and the judiciary to prevent indentured servants and slaves from running away.
This conceptualization means that law and order is not just about stopping the street-level crime.
Law and order in America, within the structural context, also involved using the criminal justice system to prevent slaves from escaping. When the delegates to the Constitutional Convention inserted the fugitive slave clause into the document, they nationalized and institutionalized this structural law and order system. While the clause may have been maddeningly vague about which branch or level of government had the responsibility to recover fugitive slaves that escaped over state lines, it also said nothing at all about the recovery of slaves escaping into foreign territories or countries. The vagueness of the fugitive slave clause and the failure to empower the president to recover fugitive slaves internationally left it up to George Washington to define the scope of this power.
Chapter 2 Fugitive Slaves and the Development of the Law and Order President, 1790-1860
During his two terms in office, George Washington set both a precedent and expectation that presidents would use their executive branch institutions to recover fugitive slaves internationally. Fugitive slaves routinely escaped into Spanish and Indian-controlled territories, and lived completely free from their masters. Washington and several of his successors used the
State Department, military and specially-designated commissioners to secure treaties and agreements to recover these fugitive slaves. Sometimes they had great success, but other times they failed to achieve their mission. Their actions helped the South and demonstrated to
Congress that the executive branch could also recover fugitive slaves that escaped into free states. Congress subsequently passed legislation that empowered the president to recover fugitive slaves within U.S. borders. Presidents Fillmore, Pierce, and Buchanan subsequently used their Attorneys Generals, U.S. marshals, and the military to recover fugitive slaves, establishing the president’s role in maintaining structural law and order. The actions of these early American presidents demonstrate that critical parts of the president’s executive branch, such as the U.S.
Attorney General’s Office, the State Department, and the Department of War, maintained structural law and order by recovering fugitive slaves at first internationally and then domestically
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40
The Commander-in-Chief as the Law and Order President
Henry Knox, President Washington’s Secretary of War, negotiated the nation’s first
Treaty with the Creek Indians in 1790, which included a provision for the return of fugitive
slaves.1 Congressman Giddings argued that Washington negotiated America’s first Treaty for the
sole “benefit of the slave interest of Georgia.”2 In the same year, Washington casually mentions
in his diary that he instructed Commissioner James Seagrove to “recover all fugitive slaves”
within the Spanish colony of Florida.3 Washington told Seagrove that he should cause Spain to
“arrest farther reception of fugitive slaves,” pay for the slaves “that have fled to Florida, and
secure all fugitive slaves that were the property of the citizens of the United States.”4 James
Seagrove, following Washington’s orders, implored Spain to stop receiving all fugitive slaves
and to “detain them until a United States official could secure them.”5 In response to
Washington’s demands, the Spanish Government promised to deliver up fugitive slaves in the
“Agreement on Fugitive Slaves.”6 Within a couple of years of assuming office, President
Washington had used his commander-in-chief powers to secure the return of fugitive slaves.
1 Charles J. Kappler LL. M.Clerk to the Senate Committee on Indian Affairs, Indian Affairs: Laws and Treaties Vol II (Washington, DC: Government Printing Office, 1904). 2 Congressman Joshua Giddings, Exiles of Florida The Crimes Committed Against the Maroons who Fled from South Carolina and the other Slave States, Seeking Protection under Spanish Law, (Ohio: Follett, Foster &Co, 1858), 12. 3 George Washington Diary Entry May 20, 1791, National Archives Founders online 6:142–43, 144; “From George Washington to James Seagrove, 20 May 1791,” Founders Online, National Archives, 4 “From George Washington to James Seagrove, 20 May 1791,” Ibid. 5 “Enclosure III: Agreement on Fugitive Slaves, 7 August 1791,” Ibid. "Commissioner Seagrove to Juan de Quesada, August 2, 1791," American State Papers: Foreign Relations (Hereafter ASPFR) 1: 248 6 “Enclosure III: Agreement on Fugitive Slaves, 7 August 1791,” Ibid.
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Lawmakers now expected that the President would use his authority to recover fugitive
slaves during the Jay Treaty negotiations of 1794. Slave owners and southern lawmakers demanded that Britain return the fugitive slaves they rescued during the Revolutionary War.7
Lord Dunmore, the Royal Governor of Virginia, and Sir Henry Clinton encouraged thousands of
fugitive slaves to escape behind British lines.8 Once the war ended in 1783, United States’
diplomats pressed Britain to return any fugitive “negroes or other property.”9 Once Britain agreed to return the fugitive slaves in the Treaty of Paris, slaveholders expected them to keep their promise. South Carolina immediately sent a letter to Sir Guy Carleton, Britain’s
Commander-in-Chief, demanding the return of their slaves.10 General George Washington
talked with Sir Guy Carleton around May 5, 1783, and insisted upon the return of the fugitive
slaves before his ships left New York harbor.11 However, a year later, U.S. Commissioners
wrote to General Washington and claimed that Sir Carleton would only return slaves that
escaped behind British lines after the war ended. To the frustration of the Commissioners, all of
the slaves on the British ships produced signed certificates showing that they came behind the
British lines during the War.12 Sir Carleton then raised the idea that Britain could register the
slaves in the “Book of Negroes” and later provide compensation to the slave owners.13 Britain
never provided that compensation and the United States could not accept this flagrant disregard
7 Don Fehrenbacher, The Slave Holding Republic An Account of the United States Government to Slavery, (Oxford University Press: New York, 2001), 91-92. 8 Cassandra Prybus, Epic Journeys of Freedom Runaway Slaves of the American Revolution and their Global Quest for Liberty, (Boston: Beacon Press, 2006), 7. 9 Treaties and Other International Acts of the United States of America Volume II, ed Hunter Miller (Washington: Government Printing Office, 1931). 10 Letters of Delegates to Congress: South Carolina Delegates to Sir Guy Carleton Volume 20 March 12, 1783 - September 30, 1783. 11 Virginia General Assembly, June 22, 1784 ASPFR, 1:227. 12 Commissioners EGB’T Benson, W.S. Smith, Dan Parker to General Washington, Jan. 18, 1784 ASPFR 1:192-193. 13 Elizabeth M. Nuxoll, "Anglo American Relations," The Selected Papers of John Jay Digital Edition.
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of Article 7 in the Treaty of Paris. Secretary of State Thomas Jefferson and his successor
Edmund Randolph argued that Britain’s “first infraction” of the Treaty of Paris happened the
moment they left New York with over “three thousand negroes.”14
George Washington assigned Chief Justice John Jay, a notable abolitionist, with
negotiating this treaty. 15 Jay had previously told the Continental Congress that Article 7 in the
Treaty of Paris bound “Britain to do great wrong to these slaves.” 16 He called this a “painful dilemma” because he knew that Britain had violated the Treaty by not returning the fugitive slaves. However, he believed Britain would have been “cruelly perfidious to return these slaves after they had invited, tempted and assisted these slaves to escape from their masters.” If Britain had returned the slaves to the United States, in his opinion, it would not have been “highly inconsistent with justice and good faith.” He concluded that Britain “ought to stand excused for
having carried away” these fugitive slaves, “provided she pays the full value for them.”17 John
Jay's well-received report to the Continental Congress made arguments against the idea of
slavery while also expressing his desire that the slaves should remain with Britain. The
Continental Congress passed Jay's report as a congressional resolution just a few months before
the start of the Constitutional Convention. However, after the ratification of the Constitution,
Britain's refusal to either return the fugitive slaves or compensate their owners for their property
loss became a primary issue of contention between the two countries. Even with Jay's
14Mr. Jefferson to Mr. Hammond, December 15, 1791, ASPFR 1:190; Edmund Randolph to John Jay December 15, 1794 ASPFR, 1: 509- 510. 15 Known officially as The Treaty of Amity, Commerce, and Navigation, Between His Britannic Majesty and the United States of America. 16 “Extracts from John Jay’s Report on Violations of the Treaty of Peace, October 13, 1786” 17 Ibid., “Extracts from John Jay’s Report on the Violations of the Treaty of Peace”
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reservations, he had to put the fugitive slave issue on the table when he negotiated the final treaty. 18
Jay did not put up a huge fight with Britain over the fugitive slave issue, and the final Jay
Treaty lacked any concessions to America’s slaveholders. When the Senate took up the Treaty
on June 8, 1795, they did not initially seem to care about Jay’s inability to negotiate the return of
the fugitive slaves. The fugitive slave issue did not even come up in the initial two weeks of
debate on the Treaty. The Senate seemed more concerned with the 12th article of the Treaty dealing with the United States’ ability to trade in the West Indies. However, on June 19th, a
Senator proposed that President Washington provide the Senate the “correspondences between
himself and Sir Guy Carleton” about the fugitive slaves.19 Three days later, a motion passed that forced the Senate President to read the list of Negroes taken by Sir Guy Carleton. On Wednesday
June 24, Senators Read and Butler of South Carolina, along with Senators Brown (KY) and
Jackson (GA), presented a motion not to consent to ratification because “the treaty has not secured satisfaction from the British government, for the removal of Negroes in violation of the
Treaty of 1783, to which the citizens of the United States was justly entitled.”20 The motion
included numerous additional reasons as to why they should not consent to the Treaty, but the
Senators listed the fugitive slave claims first. This motion failed, and the Senate voted to ratify
the Treaty with only one vote to spare. President Washington almost lost the vote on one of his
first treaties in part because of his failure to recover fugitive slaves.21
18 David Ericson, Slavery in the American Republic, 92 see also 4th Congress, Special Sess., 860-861 19 Annals of Congress, Senate 4th Congress, Special Session, 859. 20 Annals of Congress, IBID., 862 21 The Senate ratified President Washington’s first Treaty in 1790, which among other things secured the return of fugitive slaves from the Creek Indians. This treaty with the Creek Indians may have set the expectation that the President should negotiate for the return of fugitive slaves in the international arena.
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After the Senate debate, Senator Gunn proposed a motion that stated: “Resolved that the
Senate recommend to the President of the United States to renew by friendly negotiations…, the
claims of the American citizens for compensation for the [fugitive] Negroes.”22 Washington
subsequently sent the King of Britain a request for implementing the Jay Treaty in a way that
either returned the fugitive slaves or provided compensation to their previous owners. While the
Senate had many issues with the Jay Treaty unrelated to fugitive slaves, Secretary of State
Randolph called the fugitive slave issue the “chief irritation” related to the Treaty—and believed
that resolving this issue provided “the best chance for conciliation” and would “produce perfect
cordiality.” 23 The Senate's near rejection of the Jay Treaty demonstrates that senators expected
the President would use his powers as commander-in-chief to recover fugitive slaves
internationally.
Since Washington was very conscious about setting precedents, it is not clear why he
believed he should use his commander-in-chief powers to recover fugitive slaves internationally.
Arguably, President Washington may have viewed this as his responsibility because he had this obligation as the General of the Continental Army. 24 When he negotiated the return of fugitive slaves with Sir Guy Carlton in 1783, he hired commissioners and other personnel to carry out these duties. Washington may have come into office with an assumption that he had the power
and responsibility as commander-in-chief to recover fugitive slaves. Whatever the reason,
Washington had established a precedent and expectation that future presidents would use their
powers as commander-in-chief to recover fugitive slaves.
22 Annals of Congress, Senate 4th Congress, 4th Special Session, 864; Edmund Randolph to John Jay: Private, 16 August 1795,” Founders Online, National Archives. 23 “Enclosure: Edmund Randolph to John Jay: Private, August 16, 1795.” 24 Treaties and Other International Acts of the United States of America, ed Hunter Miller
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President Madison followed Washington’s precedent and used his diplomats to demand that Britain return the fugitive slaves taken during the War of 1812. Vice Admiral Sir Alexander
Cochrane encouraged thousands of slaves to escape during the War by issuing a proclamation of freedom and immigration from the United States to Britain.25 When America and Britain agreed to the Treaty of Ghent, the British agreed not to carry away any slaves and to compensate them for any unreturned slaves.26 However, the British kept the slaves just like they did after the
Revolutionary War. In the midst of the negotiations, Secretary of State James Monroe argued that the British should return the “negroes taken from the Southern States.”27 The administration, however, failed to secure the return of the slaves as British General John Lambert insisted that recognizing slavery violated the “spirit and constitution of his government.”28 After intense negotiations, Britain finally paid $1.2 million ($28 million when adjusted for inflation hereafter labeled AFI) to compensate America’s slave owners.29 The actions by Presidents Washington and Madison during these diplomatic negotiations demonstrated that presidents used their powers as commander-in-chief to recover fugitive slaves internationally. Madison, however, did not just rely on diplomatic activities to recover fugitive slaves. Instead, he and his immediate successors employed the military to destroy the fugitive slave sanctuaries established in the
Spanish colony of Florida.
25 Matthew j. Clavin, Aiming for Pensacola: Fugitive Slaves on the Atlantic and Southern Frontiers, (Cambridge: Harvard University, 2015), 42. 26 David Ericson, Slavery in the American Republic, 93. 27 Secretary of State James Monroe to the American Plenipotentiaries at Gothenburg, January 28, 1814, ASPFR 3:702. 28 Major Laccarriere Latour, Historical Memoir of the War in West Florida and Louisiana in 1814-1815, trans. H.P. Nugent, ESQ, (Philadelphia: John Conrad & Co, 1816), cxx. 29 Ericson, Slaveholding Republic, 93.
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Fugitive Slave Problem in Spanish Controlled Florida
Fugitive slaves from South Carolina and Georgia started hiding out in the Spanish colony
of Florida in 1687.30 These African slaves subsequently escaped into Florida’s vast wilderness, set up their own communities, joined the Indian tribes (later known as the Seminoles), and became a magnet for fugitive slaves from the Carolinas and eventually Georgia. Instead of returning the slaves, the Spanish King and Governor issued proclamations of freedom that invited more fugitive slaves; converted them to Catholicism; paid them for their work; allowed them to marry; and to establish an all-black settlement at Fort Moses. The Spanish also armed these fugitive slaves and used them in battles against Britain's North American colonies. Fugitive slaves fought valiantly on behalf of Spain against the colonies because a loss to the Americans would result in a return to slavery. When Georgia attacked St. Augustine, Florida in 1740, fugitive slaves comprised almost 21 percent of the Spanish defense. When Spain counterattacked
Georgia, in June 1742, "their forces included a Negro regiment," which had equal rank and status as Spanish officers. Five months later, Benjamin Martin, the Secretary for the Colony of
Georgia, and William Stephens, President of the Georgia Board of Trustees, complained about
the fugitive slaves escaping into Florida. 31 They wanted to secure a treaty that would keep the
Spanish Colony of Florida from “receiving and entertaining runway Negroes.”32 The United
States did not obtain this treaty until George Washington negotiated one in 1790. However,
30 Jane Landers, Spanish Sanctuary: Fugitives in Florida, 1687-1790, The Florida Historical Quarterly, No. 3 (Jan. 1984): 297. 31 Ibid., 302; Larry Rivers, Slavery in Florida, (Gainesville: Florida University Press, 2000), 4; Kevin Mulroy, Freedom on the Border,( Lubbock: Texas Tech, 1993), 8-9; Daniel Meaders, Dead or Alive, 66; Allen Candler, The Colonial Records for the State of Georgia Original Papers, Correspondence, Trustees General Oglethorpe and Others, 1741-1742, Vol. 23, trans, Lucian Lamar Knight, (Atlanta: Chas. P. Byrd State Printer, 1914), 887. 32 Allen Candler, The Colonial Records for the State of Georgia Original Papers, Correspondence, Trustees General Oglethorpe and Others, 1741-1742, Vol. 23, trans, Lucian Lamar Knight, (Atlanta: Chas. P. Byrd State Printer, 1914), 445.
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Spain never truly honored its obligation to stop and recover the fugitive slaves. On August 23,
1790, Thomas Jefferson wrote the top diplomat to Spain, William Carmichael, stating that citizens from Georgia continued to complain about the Spanish Government’s reception of fugitive slaves.33
Spain could not stop the fugitive slaves because they often hid among the Seminole
Indians. Seminole Indians at times enslaved Africans, but this form of slavery only required the fugitive slave to pay tribute through the form of crops and fight against white settlers. Fugitive slaves over time merged into the Seminole culture, spoke the Seminole language, and held leadership positions amongst the Seminoles. Under these conditions, fugitive slaves had their own homes, wives, and crops, and they developed their culture separate from the Indians—and by all the accounts these fugitive slaves held great influence over the Seminole Indians. For blacks, "being a slave of a Seminole was nearly as equal to being free."34 President Washington tried desperately to address this issue. As mentioned previously, Washington sought to secure the return of these fugitive slaves by signing treaties in 1790 and 1796 with the Creek Indians.35
Florida’s Seminole Indians did not honor these treaties and kept their fugitive slaves. Therefore, the actions of Spain and the Seminole Indians made Florida a sanctuary for fugitive slaves.
Presidents Madison, Monroe, Adams, and Jackson responded to this circumstance by repeatedly
33 James P. McClure and J. Jefferson Looney, “To William Carmichael,” The Papers of Thomas Jefferson Digital Edition, Charlottesville: University of Virginia Press, Rotunda, 2008–2017. 34 Kevin Mulroy, Freedom on the Border, 9-11; John and Mary Missal, The Seminoles Wars America’s Longest Conflict, (Gainesville: University Press Florida, 2004), 10-12. 35 Ibid., 11 Journals of the Continental Congress --Friday, October 26, 1787. The United States Government treated the Creek and Seminole Indians the same, but in reality, they were at war with each other and did not like each other. The Seminole Indians did not honor any Treaty signed between the United States Government and the Creek Indians.
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sending in the U.S. military to remove the Seminole Indians and overthrow Spanish control in
Florida.
Madison Secret Invasion and Military Missions in Florida
James Madison took the first initiative and sanctioned a secret invasion of East Florida to
destroy the black militias in St. Augustine, recover fugitive slaves, and force Spain out of
Florida.36 Madison had other geopolitical reasons for invading East Florida, such as preventing
Britain from using Florida as a launching point for the southern part of the United States.37
However, historian James Cusick called Madison’s mission into Florida the “South’s War of
1812,” because the interest of slaveholders motivated this military action.38 While some of the
fugitive slaves in Florida had lived there for a generation or two and expected to live their free
forever, the residents of Georgia and South Carolina argued that these slaves and their children
belonged to them.39 For this purpose, Madison misled Congress about his intentions and used
clandestine measures to overthrow the Spanish government in East Florida. 40
On January 3, 1811, Madison sent Congress an “urgent confidential message,” asking it
to resolve that the United States could not tolerate any part of Florida passing from the “hands of
Spain into those of any foreign power (Britain).” He recommended that Congress authorize the
“executive to take temporary possession of any part or parts of the said territory (East and West
36 East Florida was considered its own colony in some respects separate from West Florida. Britain separated the Colony and had given it two Governors. Spain kept this form of governance once they received their Colony back from Britain. 37 The United States had already taken over West Florida due to a local rebellion against that government. The United States always believed that West Florida belonged to them as part of the Louisiana territory. West Florida, for example, included the city of Baton Rouge. 38 John Cusick, The Other War of 1812, (Gainesville: University of Press Florida, 2003), 11, 48; Ericson, Slavery in the American Republic, 110. 39 Giddings, Exiles of Florida, 29. 40 Kevin Mulroy, Freedom on the Border, 12.
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Florida), in pursuance of arrangements which may be desired by the Spanish authorities.”41 But
Madison misled Congress with this confidential message by giving them two false impressions.
Madison led Congress to believe that local Spanish colonists would cede East Florida to the
United States just like they did in West Florida, and that Britain posed an immediate threat to
Florida. Congress subsequently cleared its chambers and held secret deliberations at Madison’s
request. On January 15, Congress passed a secret joint resolution stating that “the president of
the United States be, and he is at this moment authorized, to take possession of, and occupy all or
any part of the territory [East Florida].” But Congress passed this resolution under the
presumption that Britain posed an immediate threat to East Florida. Therefore, Congress's secret
resolution starts by saying that "the United States, under the peculiar circumstances of the
existing crisis cannot... see any part of the said territory pass into the hands of any foreign
power."42 They also subsequently passed “An Act to enable the President of the United States,
under certain contingencies to take possession of the country lying east of the river Perdido, and
South of the state of Georgia and the Mississippi territory and for other purposes.” 43 This Act
empowered the President to work with the “local authorities” to deliver the possession of Florida
from Spain to the United States if Britain tried to do the same. To accomplish this purpose,
Congress authorized the President to use the military and it appropriated $100,000 for this
contingency. This secret act and resolution gave Madison the power to invade East Florida if
Britain tried to occupy the territory first, or if the local authority in Florida ceded it to the United
41 David Hunter Miller Special Assistant in the Department of State, Secret Statutes of the United States, (Washington: Government Printing Office, 1918), 11. 42 Journal of the Executive Proceedings of the United States of America, Volume 2, 183-185. 43 Statutes at Large the United States of America, Vol. 3, "Relative to the Occupation of the Florida's by the United States of America, Library of Congress, 471-72 The initial passage of the Act happened on Tuesday, January 15, 1811 and it became public during the 15th Congress, 1 session around April 20, 1818.
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States. Congress then passed another secret act that mandated that the authority it gave to
Madison “be not printed or published until the end of the next session of Congress unless directed by the President of the United States.” These secret acts did not become public until the
Fifteenth Congress—2,563 days later. 44
With this authority, Madison’s administration tried to secretly spark a rebellion, entice
Florida residents to seek their independence, and have them hand the territory over to the United
States. All these actions reflected a genuine desire to protect the slave interest in Georgia and
South Carolina. On January 26, 1811, Secretary of State Robert Smith assigned the mission to former Georgia Governor George Matthews and Colonel McKee. In the letter he stated:
The President of the United States, having appointed you, commissioners for carrying into effect certain provisions of an act of Congress (a copy of which is enclosed) relative to the portion of Florida situated to the east of the river Perdido. You will repair to that quarter with all possible expedition, concealing from general observation the trust committed to you. 45
The rest of the letter gave very vague instructions to the two leaders telling them that “the conduct you are to pursue in regard to East Florida, must be regulated by the dictates of your own judgments.” The Secretary let the leaders know that if they needed military or navy assistance in this venture, “it will be afforded you.” Secretary of War William Eustis sent a confidential letter to Lieutenant Colonel Thomas Adam Smith, and authorized him “on the request of those gentlemen (Matthews and McKee)…to march with the troops, and take possession of such posts within the territory aforesaid.”46 These two letters, along with other
44 Ibid., 472. 45 “The Secretary of State to George Matthews and Colonel McKee” ASPFR 3:571-72. 46 James Cusick, The Other War of 1812, (Gainesville: University of Press Florida, 2003), 34-35.
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correspondence sent to the administration, show that Madison had tasked General Matthews with
stoking a rebellion in East Florida to cause them to cede that territory to the United States.
General Matthews sent several letters directly to Madison’s Secretaries of State Robert
Smith and James Monroe throughout 1811. In them, Matthews expressed his desire “to carry
Madison’s plans for the region into effect;” asked for a more specific authorization for annexing
East Florida; stated that the inhabitants of East Florida were ripe for revolt, and requested “two
hundred stands of arms and fifty horseman’s swords.” 47 The administration refused to answer
because they did not want to implicate themselves. However, the archives show that the
Madison administration received at least one of these letters because Secretary of State Smith
endorsed the receipt of the letter and marked it “Rec'd 18th March, wants a commission for East
Florida.” As Paul Krause points out, Madison also received a letter from a mutual friend,
Benjamin Hawkins, on March 11, 1811, regarding the secret mission. Hawkins, wrote that
Mathews “was sincerely impressed with the reception you gave him… and revealed to me the subject of his mission, and seemed pretty confident of success."48 This letter indicates that
Madison met with Matthews personally, and tasked him with this mission even before Secretary
of State Robert Smith sent him the initial letter.
Because of the administration’s silence, Matthew’s attempts to secure military support
remained in flux. From January 1812 until the invasion of Florida in March, General Matthews
47 Mathews to Monroe, August 3, 1811, Department of State Domestic Letters 1, in Department of State, Domestic Letters, XVI , James Cusick, The Other War of 1812, 59; Mathews to Monroe, August 3, 1811, Department of State Domestic Letters 1, in Department of State, Domestic Letters, XVI , as cited Stephen Knott, Secret and Sanctioned, (New York: Oxford University Press, 1996), 98; Mathews to Robert Smith, February 25, 1811, in General Records of the Department of State, Territorial Papers, Florida, I, October 13, 1777-December, 1811 (National Archives) as cited by Paul Kruse, “A Secret Agent in East Florida: General George Mathews and the Patriot War” The Journal of Southern History, 18, 1952: 189-190. 48 Paul Kruse, “A Secret Agent in East Florida, 189-190.
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sent several requests for military support to Secretary State Monroe, Commodore Campbell, and
Army Major Laval. 49 While Monroe continued to ignore his letters, the leaders of the army and
navy tried to assess whether President Madison supported Matthew’s mission. A month after
Matthew's request to Monroe, Commodore Campbell wrote to the Secretary of the Navy,
claiming that Matthews "confidentially " informed him that he would need the support of "naval
forces."50 While Commodore Campbell appeared to cooperate with General Matthews, Army
Major Laval refused to assist. General Matthews subsequently sent a request to Madison to have
him fired. He said, “If the President has confidence in me, leave no discretion in the officer
commanding in complying with my requests or orders.”51 Even though the administration
refused to answer this letter, Major Laval was fired soon after receiving General Matthew’s
request.
On March 16, Matthews successfully invaded the town of Fernandina with the assistance
of Commodore Campbell’s gunboats and U.S. military personnel. One day later, Matthews
forced the town of Fernandina to surrender and had local allies cede the town over the United
States.52 Matthews’ team continued its march toward St. Augustine, forcing towns to surrender
and ceding them to the United States. When Matthews arrived outside of St. Augustine on
March 28, he sent a letter to Monroe that stated: "Make my respects to the President, and inform
him that I hope so to complete my mission as to meet his unqualified approbation.”53 However,
49 Mathews to James Monroe, March 14, 1812, in Department of State, Miscellaneous Letters, XXXVI (National Archives); James Cooper, Secret Acts, Resolutions, and Instructions under which East Florida was Invaded (Washington, 1860), 8-9; Paul Kruse; A Secret Agent in East Florida, 206-207; John Cusick, The Other War of 1812, 82. 50Paul Kruse, A Secret Agent in East Florida, 207. 51 James Cusick, The Other War, 91. 52 John McIntosh was selected as a Patriot leader because he lived in both Florida and Georgia. By selecting people from Florida, Matthews could claim that the Spanish colonists sparked the rebellion, and then ceded the territory to the United States. 53 Paul Kruse, Secret Agent, 210.
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the black Seminoles, fugitive slaves, and Seminoles in St. Augustine continued to protect the city
and kept General Matthews from successfully seizing it. Governor Mitchell, the eventual
replacement for General Matthews, lamented that the “principal strength of St. Augustine
consists of Negroes.” These fugitive slaves and black Seminoles viewed the annexation of
Florida as an attempt to return them to slavery. They eventually launched a successful attack on
the Patriot Army from behind and cut their supply lines. All these actions prevented the seizure
of St. Augustine. According to Mulroy, this was the first time Americans became aware of the
alliance between Seminoles Indians and fugitive slaves. 54
Because the mission had stalled, and the United States needed to prepare for the actual
War of 1812, the Madison administration officially abandoned General Matthews on April 4, 1812.
Secretary Monroe sent him a letter and said: “I am sorry to have to state that the measures you
appear to have adopted for obtaining possession of Amelia Island, and other parts of East
Florida, are not authorized by the laws of the United States... Your powers are revoked.” 55
Monroe secretly sent Matthews another letter with a more conciliatory tone. It was unsigned but
believed to be Monroe's handwriting. In it, Monroe reassured Mathews that the administration
maintained confidence in his “patriotism, integrity, and zeal.” 56
Madison had many geopolitical reasons for invading East Florida, but those that fought in
the War and occupied the territory after Madison abandoned it viewed it as means to destroy the
fugitive slaves and black militia hiding out there. On July 17, 1812, Matthews’ replacement,
Governor Mitchell, told Madison that he could not remove the U.S. troops from East Florida. He
54 John and Mary Missal, The Seminole Wars, 20; Mulroy, Freedom on the Border, 11-12. 55 The Secretary of State to George Matthews and Colonel McKee ASPFR, 3:571-572. 56 Draft of letter, unsigned, Washington, April 4, 1812, in Department of State, Miscellaneous Letters, XVI; Paul Kruse Secret Agent, 213.
54 said the Spanish had armed every able-bodied Negro within their power…and it is my decided opinion that if they are suffered to remain in the province, our Southern country will soon be in a state of insurrection.”57 Southerners did not just fret over fugitive slaves. They feared that these fugitive slaves would lead rebellions in their states. John McIntosh, the Patriot Army leader, wrote James Madison and said:
Latterly we have learned with inexpressible anguish that the troops and gunboats of the United States, which constitute our only security, are to be removed, our slaves are excited to rebel, and we have an army of Negroes raked up in this country, and brought from Cuba to contend with. Let us ask, if we are abandoned, what will be the situation of the Southern states, with this body of men in the neighborhood?58
On June 7, 1813, Indian Agent Benjamin Hawkins wrote to Secretary of War General Armstrong and stated that the Patriots “could not submit to the order of things in St. Augustine. The military force there being of that description of people, blacks and mulattoes, abhorrent to them, and from whom they were not to expect justice.”59 Madison did not want the administration associated with this mission because it involved the overthrow of Spanish control of Florida. However, the states of Georgia and South Carolina lost hundreds of slaves to Florida over the years. Thus,
Madison’s decision to secretly invade Florida reflected a genuine desire to eliminate one of the main fugitive slave sanctuaries in the South.
Madison did not stop with this secret invasion. He sent the military into Florida again after the War of 1812 ended. Just before the signing of the Treaty of Ghent (which ended the
War of 1812), British Naval Officer Colonel Edward Nicolls built a well-armed fort at Prospect
57 State Papers and Public Documents of the United States, from the Accession of George Washington to the Presidency, Exhibiting a Complete View of Our Foreign Relations Since that Time, Vol. 9. Boston: T. B. Wait and Sons, 1817 164. 58 Ibid., 154-156 59 Benjamin Hawkins to Secretary of War General Armstrong, June 16, 1818, American State Papers, Indian Affairs, 1:844-855 (Hereafter ASPIA).
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Bluff in Florida and gave it to fugitive slaves and Seminole Indians. While the Seminole Indians
eventually left, the fugitive slaves remained, chose their own leaders, developed their own
government, and cultivated their own food.60 Americans referred to this fort as the “Negro Fort” as it attracted additional runaway slaves from South Carolina and Georgia. Secretary of War
William Crawford wrote to Major General Andrew Jackson and said: “The Negro Fort…has been strengthened… and now occupied by between two hundred and fifty and three hundred blacks, who are well armed, well clothed and disciplined…, this is the state of things which cannot fail to produce much injury to the neighboring settlements, and excite irritations which may ultimately endanger the peace of the nation.”61 Jackson wrote to West Florida Governor
Mauricio de Zuniga and threatened to attack the fort out of self-defense if Spain failed to eradicate the problem. 62 General Jackson also wrote Secretary of War Crawford and told him
that Spain had permitted America to enter Florida to destroy the fort. He confidently told
Crawford that the “4th and 7th infantry would be enough to destroy it.”63 Jackson subsequently
told his subordinates that the Negro Fort potentially had over three-hundred- and-fifty fugitive slaves and that they were a “band of outlaws and land pirates.” Jackson confided to General
Gaines that he had very “little doubt of the fact that this fort has been established by some villains for the purposes of murder, rapine, and plunder, and that it ought to be blown up,” and that Gaines should “restore the stolen Negroes and property to their rightful owners.”64
60 Edwin McReynolds, The Seminoles, (Norman: University of Oklahoma Press, 1957), 74. 61 Andrew Jackson, The Papers of Andrew Jackson 1816-1820, ed. Sam B. Smith, Harriet Fason Chappell Owsley, Harold D. Moser, (Knoxville: University of Tennessee Press, 1990), 15.
62 Senate, 15th Congress, 2nd Session, S Doc. 14, 55; ASPFR, “General Jackson to the Governor of Pensacola, April 23, 1816;” John Mahon, “The First Seminole War November 21, 1817-May 24, 1818,” The Florida Historical Quarterly, 77 no. 2 (summer, 1998): 64. 63 Senate, 15th Congress, 2nd Session, S Doc 17, 557. 64 Kevin Mulroy, Freedom on the Border, 14; Matthew Clavin, Aiming for Pensacola, 56
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Following Jackson’s orders, General Gains instructed Colonel Duncan Clinch to set up a supply route in front of the Negro Fort and told Navy Commodore Daniel Patterson to “destroy” the (Negro) fort if the fugitive slaves responded to this provocation.65 Gaines and Indian Agent
Colonel Hawkins also had 250 army regulars and Indians march toward the Negro Fort to provide reinforcements.66 Commodore Patterson ordered Lieutenant Commandant Charles
Crawley and Sailing Master Jairus Loomis to “cooperate” in destroying the Negro Fort if necessary.67 Five days later, Sailing Master Loomis left New Orleans and reached the
Apalachicola River near the Negro Fort on July 10th.68 About a week later, the fugitive slaves responded to the provocation and attacked the supply route. Sailing Masters Loomis and Bassett fired a “hot shot” on the Negro Fort and destroyed it within minutes.69 Over 250 fugitive slaves died immediately from the explosion, and the military returned the remainder to slavery. With
“great satisfaction,” Commodore Patterson informed Navy Secretary Benjamin Crowinsheild about the success of the mission.70 However, the destruction of the Negro Fort did not stop fugitive slaves from seeking refuge amongst the Seminole Indians in Florida.
65 Edwin McReynolds, The Seminoles, 76; General Edmund Gaines to Commodore Daniel Patterson, May 22, 1816, ASPFR, 4:558-559. 66 John Mahon, “The First Seminole War November 21, 1817-May 24, 1818,” 63; Senate, 15th Congress, 2nd Session, S Doc 18, 557. 67 Commodore Daniel Patterson to Sailing Master Jairus Loomis and Charles Crawley, June 19, 1816 ASPFR, 4:559 . 68 Edwin McReynolds, The Seminoles, 76. 69 Sailing Master Jairus Loomis to Commodore Daniel Patterson August 13, 1816, ASPFR, 4: 559 70 Commodore Daniel Patterson to Secretary of War, Benjamin Crowinsheild August 15, 1816, ASPFA 4: 561; see also H.R. DOC 159 15 Congress 1 Sess March 24, 1818, American State Papers: Navy Affairs, H.R. Doc. 159 15th Cong. 1 Sess March 24, 1818, 502.
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Monroe Sparks the First Seminole War
Spain’s failure to control the Seminole Indians and these fugitive slaves led Secretary of
War John C. Calhoun to order Major General Andrew Jackson to attack the Florida Seminoles.71
President Monroe subsequently informed Congress that certain areas around the Georgia-Florida
border had become “an asylum for fugitive slaves from the neighboring States.”72 Jackson then
told Spanish officials that the President ordered him to enter Florida to “chastise a savage foe”
and a “band of Negro brigands.”73
Jackson followed through on his orders and invaded Florida, destroying Indian
settlements and returning fugitive slaves to their owners. But Jackson’s Florida invasion sparked
an international incident because he seized the Spanish Forts and executed British citizens he
considered to be outlaws.74 While the Spanish King demanded that the United States “disavow”
Jackson’s actions, President Monroe and Secretary of State John Quincy Adams defended his
invasion, claiming that the “Negroes” committed all sorts of “depredations, outrages, and
murders, and served as a receptacle for fugitive slaves.”75 Luis De Onis, the Spanish Envoy to
the United States, challenged this argument by highlighting the fact that the "Negro fort had long
since been destroyed” before Jackson’s invasion of West Florida.76 Spain expressed an
71 Secretary of War John C. Calhoun to Andrew Jackson, December 26, 1817, American State Papers: Military Affairs 1: 690 Here After (ASPMA) as cited by John Mahon, “The First Seminole War November 21, 1817-May 24, 1818,” The Florida Historical Quarterly, 77 no. 2 (summer, 1998): 64 72 James Monroe: "First Annual Message," December 2, 1817. The American Presidency; See also James Monroe: "Second Annual Message," November 16, 1818. ed. Gerhard Peters and John T. Woolley, 73 John Mahon, The First Seminole War, November 21, 17- May 24, 1818, The Florida Historical Quarterly 1998. 74 Andrew Jackson to Maurice de Zuniga, Commander at St. Marks, ASP April 6, 1818; John Mahon, "The First Seminole War, 65; Debra Rosen, Border Law: The First Seminole War, (Cambridge: Harvard University, 2015) 2. 75, Secretary of State John Q. Adams to George Erving, Spanish Envoy, November 28, 1819 ASPFR 4:540. 76 Luis De Onis to Secretary of State James Monroe, ASP: Foreign Affairs August 5, 1818, 504
58 incredible amount of frustration because Jackson’s invasion revealed that the Spanish could not control Florida. They subsequently ceded it to the United States on February 19, 1819, and the
U.S. annexed it in July 1821. However, when the United States took over Florida, Presidents
Monroe and Adams had to confront the fact that the Florida Seminoles continued to attract fugitive slaves from Georgia and South Carolina.
Ineffective Bureaucracy and the Fugitive Slave Problem in Florida
Andrew Jackson, now the West Florida Governor, told Secretary of War Calhoun that
Florida would be a “receptacle for rouges, murders and runaway negroes” if the Seminoles remained in the territory. 77 President Monroe tried to resolve this fugitive slave issue peacefully by negotiating the Treaty of Moultrie, which required the Seminoles to move deeper into Florida and return any fugitive slaves.78 However, the Treaty failed to give the Seminoles a deadline for relocating, and this gave a ten-year window in which to attract and protect additional fugitive slaves.
Beginning in 1823, the residents of Florida, their Governor, and their House of
Representative delegates sent signed petitions to President Monroe, Congress, and the Secretary of War, asking them to send “a sufficient force to apprehend the fugitive slaves running at large in Florida.”79 They needed help because Florida had become a refuge for fugitive slaves and the
Seminole Indians had a habit of “enticing away the slaves of the people of Florida, as well as
77 “Commissioner and Governor Jackson to Secretary of War” May. 26, 1821, The Territorial Papers of the United States, ed. Clarence Carter (Washington: Government Printing Office, 1956), (Here After TTP: Florida) 22: 58. 78 John Mahon, “The Treaty of Moultrie Creek, 1823” The Florida of Historical Society v. 40 no. 4 Apr 1962 350-372. 79 Governor Duval to Secretary of War John C. Calhoun Sept 23, 1823,” TTP, 22:744; Delegate Joseph White to Secretary of War James Barbour May 1, 1828, TTP: Florida, 24: 6
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those of the adjacent states.”80 When President Adams took power, his Secretary of War, James
Barbour, asked the Seminole Chiefs to “deliver up” any slaves that ran into their territory.81 The
Seminole Chiefs refused to turn over the slaves. As the fugitive slave problem continued,
frustrated administration officials began to blame each other. Superintendent of Indian Affairs
Thomas McKenney chastised Indian Agent Gad Humphreys for failing to recover fugitive slaves
for Florida residents. The Department of War received “frequent complaints," he said, about the
Seminole Indians holding onto the fugitive slaves. McKenney bluntly told Humphreys to have
the fugitive slaves "surrendered" to their owners.82 McKenney eventually reported Humphrey's
failure to recover runaway slaves to Secretary of War Peter Porter.83 Porter informed President
Adams, and he fired him.84 The firing of Humphreys did not solve two of the main issues
associated with the Florida territory: the presence of Seminole Indians in Florida and their
protection of fugitive slaves.
Andrew Jackson Sparks the Second Seminole War
These two issues came together under President Andrew Jackson in 1835 and sparked the
Second Seminole War. Jackson learned as a leader of the fugitive slave missions that fugitive
slaves were the “one great obstacle” to removing the Indians because “they had great influence
amongst the Indians.85According to numerous executive branch officials, fugitive slaves had a
controlling influence over the Indians, and the Indians did not want to leave Florida to protect the
80 "Petitions to the Congress by the Inhabitants of East Florida, March. 8, 1824,", TTP: Florida, 22: 857 81 “Secretary of War James Barbour to Delegation of Florida Indians, May 10, 1826,” TTP: Florida 23:540 . 82 “Thomas McKenney to Indian Agent Gad Humphreys, February 8, 1827,” TTP: Florida, 23:755. 83 “Thomas McKenney to the Secretary of War Peter Porter, November 1, 1828 TTP: Florida 24: 94-95. 84 Secretary of War Porter to President of the United States, December 6, 1828 TTP: Florida 24:114-115. 85 General Richard Call to President Andrew Jackson, March 22, 1835, Wiley Thompson ASPMA, 6:464; William Duval to Elbert Herring, January 20, 1834, APSMA 6:458-459; William Duval to Elbert Herring, January 26, 1834, 6:458-459.
60 slaves from “apprehension."86 Since the Seminoles refused to move, President Jackson applied force and sparked the Second Seminole War. General Thomas Jesup said in early 1837 that
“throughout my operations, I have found the Negroes the most active and determined warriors; and during the conference with the Indian chiefs, I ascertain that they exercised an almost controlling influence over them.”87 General Jesup told his Secretary of War that “this, I may assure you is a Negro war, not an Indian War and if not put speedily down, the South would feel the effects on their slave populations before the end of next season.”88 Therefore, he tried to shorten the Second Seminole War by promising freedom to any Black Seminole that emigrated west of the Mississippi while also offering a small plot of land to the Seminoles. When the
General met resistance from the Southerners, he publicly withdrew this formal offer and pursued this strategy quietly. To justify the removal of these fugitive slaves to the west, Jesup simply declared that they were Seminole property. 89 By 1838, most of the Black Seminoles took his offer and left Florida.90 The war ended inconclusively around August 1842.
President Jackson’s willingness to use the military to solve the fugitive slave problem in
Florida reflected a specific kind of development of the State and War Departments. It followed a long pattern started by President Washington’s initial decision to use these executive branch institutions to recover fugitive slaves. The international recovery of fugitive slaves was a critical development in the president’s powers to maintain law and order because it established the fact that the executive branch could be used in this manner. If presidents did not recover fugitive
86 Wiley Thompson to William Duval, January 1, 1834, APSMA 6:553-555. 87 Thomas S. Jesup to Roger Jones, March 6, 1837, Negroes and Captured for Indians in Florida, 25. Cong., 3 Sess, House Doc. 225 as cited Mulroy Freedom on the Border, 28 88 Jesup to Benjamin Butler, Acting Secretary of War, December 9, 1836, ASPMA, 7:821. 89 Kevin Mulroy, Freedom on the Border, 30-31. 90 David Ericson, Slavery in the American Republic, 99,112.
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slaves internationally, lawmakers at the state and federal level would have no reason to believe
that presidents could recover slaves domestically. Once presidents developed a track record for
using the executive branch to recover fugitive slaves internationally, they possibly convinced
some Southerners that the president and the federal government could also recover fugitive
slaves domestically. Legislators discussed the destruction Madison’s and Monroe’s missions into
Florida over several days in Congress. These missions drew congressional attention and provided
the only evidence that the president could recover fugitive slaves. Without these missions,
Southerners would have no reason to trust that the president would carry out this authority to
their benefit. For many years, Southerners resisted any effort to involve the federal government
in the fugitive slave recovery process. When Congress considered giving the federal government
this power, Senator Jefferson Davis laid out the South’s objection:
Our safety consists in a rigid adherence to the terms and principles of the federal compact. If, for considerations of temporary or special advantage, we depart from it, we, the minority (slaveholders) will have abandoned our only reliable means of safety. If the federal government were given the “power to assume control over the slave property,” or to “interpose its legislative and financial power between the individual owning that property and the property itself,” there would be no end “to the action which anti-slavery feeling will suggest. 91
Jefferson Davis offered the most candid reason why Southerners never wanted neither the federal
government nor president involved in recovering fugitive slaves. He believed that if the president
had the power to recover fugitive slaves, they could later use that same power to free them. The
international recovery of fugitive slaves provided Southerners with the only evidence that
presidents could use executive branch institutions to maintain structural law and order.
91 Stanley Campbell, The Slave Catchers: Enforcement of the Fugitive Slave Law, 1850-1860, (Chapel Hill: University North Carolina Press, 1970), 21.
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Therefore, the president’s power to recover fugitive slaves internationally is an antecedent to
power they exercise to recover fugitive slaves within the borders of the United States.
Fugitive Slaves and the Nation’s First Sanctuary Cities
The North's resistance to recovering fugitive slaves started in June 1791 when three
Virginian slave catchers kidnapped a free African named John Davis from his Pennsylvania
residence. Governor Thomas Mifflin of Pennsylvania asked Governor Beverly Randolph of
Virginia to extradite the three kidnapping suspects.92 Governor Randolph refused and stated that
the Pennsylvania Abolitionist Society illegally lured Davis away from his master.93 He stated
that the three men had a legal right to return Davis to his owner. After talks between the
Governors broke down, President Washington received information on this interstate dispute,
consulted with Attorney General Randolph, and asked Congress to draft legislation that could
prevent future extradition quarrels.94 A congressional committee of three subsequently proposed a process for extraditing fugitives from justice (kidnappers) and fugitives from service (slaves).95
After about 400 days of legislative activity, Congress passed and sent the Fugitive Slave Act of
1793 to President Washington’s desk. Some Northerners argued that the Act threatened the due
process rights of their free African citizens because fugitive slaves could not receive a trial by
jury; slave owners could unilaterally seize alleged fugitives; alleged fugitives could not testify,
and local magistrates could give them a certificate to remove the slave based on ex-parte
92 Governor Thomas Mifflin to Governor Beverley Randolph, June 4, 1791, American State Papers: Miscellaneous, 1:40. 93 Paul Finkelman, “The Kidnapping of John Davis and the Adoption of the Fugitive Slave Law of 1793” The Journal of Southern History, 56 1990: 397. 94 Annals of Congress, Senate, 2nd Congress, 1st Session p. 17 &18, ibid., 397-398.
95 Annals of Cong., 2 Cong. 1 Session, 444; 148 as cited Marion Gleason, Fay House Monographs No. 3 Fugitive Slaves, 1619-1865, (Boston: Ginn & Company, 1891), 17-19.
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testimony. While these unjust provisions threatened the liberty of free Africans, the Fugitive
Slave Act left the recovery of slaves up to individual slaveholders. This defect in the law meant
that slave owners bore the burden of catching their own slaves and left open an opportunity for
Northern legislatures to resist the Fugitive Slave Act of 1793.
The Northern States resisted the enforcement of the fugitive slave law in part because of the emerging abolitionist movement in the North and because they wanted to protect their free
African population from kidnapping. In 1801 and 1804, the American Convention of Abolition
Societies and the New York Manumission Society respectively warned their members that “the
inhumane crime of kidnapping has increased” and that it occurs under “false claims made under
the Fugitive Slave Act.” 96 Kidnappers threatened the free African population in the Border
States as they routinely seized free Africans and sold them to slave owners deeper in the South.97
Examples of terrible kidnapping stories emerged throughout the North. They heard how
kidnappers took six-and-eight-year-olds Peter and Levin Stills and sold them to a Southern
master. Levin died as a slave, but Peter eventually bought his freedom forty years later. In 1836,
a kidnapper took a ten-year-old from New Hampshire and sold him to a slave owner in Alabama.
The police arrested a free African named George Jones in New York on the faulty charge of
assault and battery in 1836. He initially refused to go with his accuser, but his employer ordered
him to go because he would go to the court to testify on his behalf. However, he would not get
that chance because within two hours his accusers convinced a judge that Jones was a fugitive
slave, and this allowed his accusers to sell him into slavery. Solomon Northrup, a free man in
96 Thomas Morris, Free Men All the Personal Liberty Laws of the North, 1780-1861, (Baltimore: John Hopkins University Press, 1974) 29. 97 Carol Wilson, Freedom at Risk the Kidnapping of Free Blacks in America, 1780-1865, (Lexington, University Press of Kentucky, 1994), 9-14.
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New York, was drugged, kidnapped, and suffered as a slave for twelve years before obtaining his
freedom.98
These kidnapping stories captivated and angered Northern citizens and led legislators to pass a series of personal liberty laws to protect their free African population. These laws obstructed the slaveowner’s ability to recover their fugitive slaves. While all of the personal liberty laws varied to some extent, they generally barred state officials from enforcing the
fugitive slave law, prohibited the use of state jails to house fugitive slaves, prevented either the
kidnapping of free Africans or removing alleged fugitives without due process of the law,
extended the writ of habeas corpus, and extended the right to jury trials.99 Pennsylvania’s legislature passed laws in 1820 and 1826 that limited its state officials’ ability to cooperate in the rendition of fugitive slaves and increased the penalty for kidnapping free blacks to 21 years.
While Pennsylvania’s ’s law required the slave owner to use the state’s judicial process for recovering slaves, the state had only one district judge that could hear fugitive slave cases.100
These laws collectively created the nation’s first sanctuary cities and ultimately made it difficult
for slave owners to recover any fugitive slaves as Don Fehrenbacher explained:
Runways, they complained, were often induced to flee by abolitionist influence and illegally aided in their escapes, by a network of conspirators, black and white (the Underground Railroad). Then when a slave-owner entered a free state to recover his property in accordance with federal law, he was likely to be impeded by unfriendly state legislation, uncooperative or feckless local officials, and hostile and sometimes violent populace.101
98 Marion McDougall, Fay House Monographs No. 3 Fugitive Slaves, 37-38. 99 Stanley Campbell, The Slave Catchers: Enforcement of the Fugitive Slave Law,138; Thomas Morris, Free Men All, 45. 100 Stanley Campbell, Slave Catcher, 11. 101 Don Fehrenbacher, The Slave Holding Republic an Account of the United States Government’s Relations to Slavery, (New York: Oxford University Press, 2001), 225.
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The fugitive slave law suffered another blow when the Supreme Court inadvertently gave
Northern states the right to abstain from the recovery process. It started when a Maryland slave
named Margaret Morgan escaped into Pennsylvania. Five years later, Edward Prigg, on behalf of
Morgan’s masters, captured and returned her to Maryland without notifying Pennsylvania’s law
enforcement authorities. Prigg’s action’s violated Pennsylvania’s personal liberty laws, and they
arrested and convicted him on this charge.102 However, his attorney appealed the decision to the
U.S. Supreme Court and argued that Pennsylvania's personal liberty law violated the Fugitive
Slave clause of the Constitution and the federal supremacy contained in the Fugitive Slave Act of
1793. Chief Justice Story declared Pennsylvania’s personal liberty laws to be unconstitutional
because they conflicted with the federal supremacy of the Fugitive Slave Act of 1793 and
Section IV of Constitution. However, he also declared that the federal government could not
force state officials to enforce the fugitive slave law.103 Justice Roger Taney dissented because
he immediately understood that Story gave the Northern states the right to completely abstain from enforcing the fugitive slave law, leaving it to a decentralized federal government. Northern states subsequently passed a series of personal liberty laws that prohibited state officials from catching fugitive slaves, hearing fugitive slave’s cases, or allowing federal officials to hold fugitive slaves in state prison facilitates.104 Story’s ruling led to the complete collapse of the
Fugitive Slave Act of 1793. States in the upper south complained vehemently about the loss of
money due to slave escapes.
102 An Act to give effect to the provision of the constitution of the United States, relative to fugitives from Labor, for the protection of free people of color, and to prevent kidnapping, Pennsylvania, 1826 103 Prigg v. Pennsylvania 41 U.S. 539 (1842). 104 Massachusetts, An Act to Further Protect Personal Liberty, 1843; Connecticut An Act for the Protection of Personal Liberty, 1844; Pennsylvania, An Act to prevent kidnapping, preserve the public peace, prohibit the exercise of certain powers heretofore exercised by judge, justice of the peace, alderman, and jailors in the commonwealth, and to repeal certain slave laws, 1847.
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Congress responded to the failure of the Fugitive Slave Act of 1793 by enacting the
Fugitive Slave Act of 1850, which created the president’s domestic law and order responsibilities. Sections I through III of the Act enlarged the number of the commissioners and increased their jurisdiction over fugitive slave cases “to afford reasonable facilities to reclaim fugitives from labor.” This provision alleviated the slave owner’s burden of finding a judge to hear their fugitive slave claims. Section V of the Act threatened a $1,000 ($32,000 AFI) fine if the U.S. marshal failed to “obey and execute all (fugitive slave) warrants.” Lawmakers included this fine in the bill because fugitive slaves often escaped from the custody of law enforcement officials. This section also gave all U.S. citizens the power “to aid and assist in the prompt and efficient execution of this law, whenever their services may be required.” 105 Congress borrowed this provision directly from the 1660 Virginia colony when they tasked all their citizens with aiding in the capture of fugitive servants and slaves. Taken together, the Fugitive Slave Act of
1850 shifted law and order responsibilities from the states to the executive branch.
105Statutes at Large Thirty-First Congress. Sess. I. Ch. 60. September 18, 1850. An Act to amend, and supplementary to, the Act entitled " An Act respecting Fugitives from Justice, and Persons escaping from the Service of their Masters," Approved February twelfth, one thousand seven hundred and ninety-three
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The Law and Order Presidencies of Fillmore, Pierce, and Buchanan
Soon after the passage of the Fugitive Slave Act of 1850, President Fillmore received
a letter from Pennsylvania judges informing him that a fugitive slave warrant was “forcibly and
successfully resisted.” The judges asked Fillmore whether they could seek the aid of military
forces “upon recurrence” of this type of “obstruction.”106 Five days later, Fillmore notified his
cabinet that he would use the military when marshals were “unable to sustain the law by civil
authority.” He believed that he could employ the military to enforce the fugitive slave clause
because it “was an inherent executive power enforced by the Constitution when it made the
president the Commander-in-Chief of the Army and Navy and required him to take care that the
laws be faithfully executed.” Therefore, it “would be his duty to call forth the militia, the Army,
and Navy whenever the laws of the United States shall be opposed, or the execution thereof be
obstructed.” While Fillmore recognized that the fugitive slave law had “been openly
resisted…and defeated by lawless and violent mobs,” he promised to enforce the law “wherever
and whenever the execution of the fugitive slave law met resistance.”107 In addition to citing his
commander-in-chief powers as justification for enforcing the fugitive slave law, Fillmore cited
his powers under the Militia Act of 1792 and its corresponding amendments. This law allowed
the president to use the military to help states enforce their laws in the case of internal
insurrection. It also allowed the president to use the military if state officials openly rebelled
against laws passed by Congress, thereby making it a federal supremacy law. Thus, Fillmore
106 Frank Severance, Millard Fillmore Papers Vol. 1, President Fillmore to Webster, October 23, 1850, (Buffalo: Buffalo Historical Society, 1907), 334-335. 107 Ibid. 335-336, Millard Fillmore Papers Vo1. 1, President Fillmore to Webster, October 28, 1850; W.S Derrick to Robert Collins, November 19, 1850, Millard Fillmore Papers Vol. 2, 301-303.
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believed the president’s power to maintain structural law and order required enforcing the
fugitive slave law under the authority of the U.S. Constitution.
Fillmore immediately faced violent resistance and a series of crises that tested his
commitment to enforcing the fugitive slave law. In February 1851, Boston’s Federal
Commissioner George Curtis issued an arrest warrant for a fugitive slave named Shadrach.108
U.S. Marshal Patrick Riley arrested Shadrach, and a large group of free Africans broke into the
courthouse and rescued him. 109 Fillmore quickly issued a proclamation stating that “lawless
persons, principally persons of color…, did by force rescue from their custody a person arrested
as a fugitive slave.” He required all “commanding officers, civil and military, to aid and assist…
in recapturing the above-mentioned prisoner.”110 In addition, Fillmore ordered his Secretaries of
the War and Navy Departments to assist the U.S. marshals in capturing Shadrach. However,
Shadrach eventually made it to Montreal, and Fillmore ordered his U.S. Attorney in Boston to
prosecute all those responsible for the rescue. 111 Senator Henry Clay asked Fillmore “what
means he has adopted to” prevent forcible rescues of fugitive slaves and “whether in his opinion
any additional legislation is necessary to meet the exigencies of the case.”112 Fillmore responded
by blaming the rescue on Massachusetts’s 1843 personal liberty law which prohibited the use of
state facilities in the process of recovering slaves. He added that Congress could not “limit or
restrain his constitutional authority” to use the military to enforce the law. However, Congress
108 Shadrach’s given name was Frederick Wilkins. 109 Don Fehrenbacher, The Slave Holding Republic; Marion McDougall, Fay House Monographs No. 3 Fugitive Slaves; Stanley Campbell, Slave Catchers. 110 Millard Fillmore: "Proclamation 56—Calling on Citizens to Assist in the Recapture of a Fugitive Slave Arrested in Boston, Massachusetts," February 18, 1851, ed Gerhard Peters and John T. Woolley, The American Presidency Project. 111 Don Fehrenbacher, The Slave Holding Republic, 233; Jane and Willam Pease, The Fugitive Slave Law and Anthony Burns, (Philadelphia: LinppinCott, 1975) 4; Stanley Campbell, Slave Catchers, 21. 112 31 Congress Senate Journal 187 Congressional Globe as cited by Marion McDougall, Fay House Monographs No. 3 Fugitive Slaves, 48.
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could provide “greater certainty” by passing legislation that explained the “employment of the
Army, Navy and calling forth of the militia.”113 Fillmore emphasized that “so far as depends on
me the laws shall be faithfully executed, and all forcible opposition to them suppressed, and to
this end, I am prepared to exercise, whenever it may become necessary, the power
constitutionally vested in me to the fullest extent.”114
Two months after the Shadrach rescue, Fillmore received another opportunity to enforce the fugitive slave law in Boston. U.S. marshals arrested a fugitive slave named Thomas Simms.
This time the federal government deputized the Boston police, and they strung chains around the
perimeter of the courthouse to prevent a rescue of Simms. Commissioner George Curtis ordered
Simms to go back to his slave owner. At the conclusion of the Simms case, Fillmore wrote to
Secretary State Webster to congratulate him and the country on the “triumph of law in Boston.”
He noted that Boston “has wiped out the stain of the former rescue and freed herself from the
reproach of nullification.”115
An armed riot in Christiana, Pennsylvania, interrupted Fillmore's Boston enforcement victory. In September 1851, a slave owner named Edward Gorsuch led the Deputy United States
Marshal Henry Kline into Christiana, Pennsylvania to recover his slave.116 He found his alleged
fugitive slave along with other free Africans at the home of the notable abolitionist William
Parker. When the slaves refused to give up, Gorsuch and the marshal engaged in a firefight with
the fugitive slaves. This initiated a riot in which Gorsuch lost his life and his son was severely
113 Militia Act of 1792 which gives specific instructions on when the president can use the military and the militia. And Militia Acts of 1795 and 1807. 114 Millard Fillmore: "Special Message," February 19, 1851, The American Presidency Project, ed Gerhard Peters, and John T. Woolley. 115 Fillmore to Webster, April 16, 1851, Millard Fillmore Papers Vol. 1, 341. 116 Stanley Campbell, Slave Catchers, 122.
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wounded. Fillmore and his Secretary of State, William Derrick, ordered fifty U.S. soldiers and marines to pursue the rescued slaves.117 The failure in Christiana was followed by another
enforcement failure a month later when abolitionists forcibly rescued Jerry McHenry, a fugitive
slave in New York, and sent him to Canada. The U.S. Attorney indicted eighteen individuals for
McHenry’s rescue, but the case faltered. Since New York did not recognize slavery as a legal
institution, the state attorney indicted the U.S. marshal on kidnapping charges. The presiding
judge declared the Fugitive Slave Act unconstitutional, but the jury found the U.S. marshal not
guilty. 118 Fortunately for Fillmore, this type of resistance to the fugitive slave law subsided after
those rescues.
Both political parties in the North and South threw their support behind the law as they
viewed it as a necessary mechanism for keeping the Union together. However, the North’s
resistance to the law reemerged in 1854 as a result of President Pierce signing the Kansas-
Nebraska Act, which extended slavery into new territories. 119 Boston Commissioner Edward
Loring ordered the arrest of fugitive slave Anthony Burns on the same evening that Congress enacted the Kansas-Nebraska Act. Outraged by the unpopular new law, Wendell Phillips led a group of abolitionists in an unsuccessful effort to rescue Burns by force, in the process killing a
U.S. deputy marshal. After the failed rescue attempt, U.S. marshals summoned federal troops to guard the courthouse along with a company of marines. Pierce told the marshals that their conduct “was approved, the law must be enforced.”120 Secretary of War Jefferson Davis ordered
117 James Rhodes, History of the United States from Compromises of 1850, (New York: Harper & Brothers Publication, 1892), 223; Ericson, Slavery in the American Republic, 125. 118 Stanley Campbell, Slave Catchers, 84; McDougall Monograph, 48 . 119 Ibid., 84 120 Ibid. 85-87
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additional troops into Boston to restore order.121 The U.S. military subsequently occupied Boston
and marched Burns through the city back to his slave owner’s ship. Specifically, the militia
created a boundary along the route to Burns’ boat. A detachment from the National Boston
Lancers led the procession followed by a company of marines. Sixty military volunteers then
followed the procession, forming a marching square, with Burns in the center. Another company
of marines guarded these volunteers. Immediately behind those marines came loaded cannons
with another company of marines bringing up the rear.122 It cost the U.S. government about
$40,000 ($1,000,000 AFI) to return Anthony Burns to his slave owner. Pierce’s costly show of
military force demonstrated the president’s commitment to maintaining structural law and order
by recovering fugitive slaves. The actions of Pierce and Fillmore complicates Brian Balogh’s
argument that the federal government operated in ways that that was nearly invisible and
uncontroversial constitutionally. The citizens of Boston, Christiana, Pennsylvania, and New
York witnessed physical force and occupation of the federal government as it enforced a fugitive
slave law that they believed violated the principles of freedom and states’ rights.123
Pierce’s administration also took a big step in developing the law and order president
by allowing Attorney General Anthony Cushing to institutionalize Fillmore's fugitive slave
enforcement practices. Cushing wrote official legal opinions enabling U.S. marshals to request
troops to enforce the fugitive slave law, paid legal expenses for any U.S. marshal sued for falsely
arresting a free African citizen, provided the marshals with broad authority to work with local
121 Jane and William Pease, The Fugitive Slave Law and Anthony Burns, 17-41. 122 "Triumph of the Slave Power—The Kidnapping Law Enforced at the Point of the Bayonet— Massachusetts in Disgraceful Vassalage." Liberator [Boston, Massachusetts] 9 June 1854: 91. Also see Jane and William Pease, The Fugitive Slave Law, and Anthony Burns and Campbell, The Slave 123 Brian Balogh, A Government Out of Sight: The Mystery of National Authority in Nineteenth-Century America, (Cambridge: Cambridge University Press, 2009).
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police, and empowered any citizen of the United States to recover a fugitive slave. These
opinions initiated the Attorney General’s role in directing U.S. marshals in handling fugitive
slave cases and made the Attorney General instrumental in carrying out the president’s domestic
law and order obligations. Cushing also publicly defended the president’s commitment to
recovering fugitive slaves at a time when public opinion about the law split along sectional lines.
Cushing’s work led to fewer rescues and more fugitive slave recoveries than at “any other time
preceding the Civil War.”124
Jeremiah Black, President Buchanan’s Attorney General, also expanded the
enforcement of the Fugitive Slave Act by giving specific directions to U.S. marshals. For
example, he wrote a letter directly to U.S. Marshal Matthew Johnson and told him “You will, of
course, see to it that your prisoners are not rescued out of your custody either by the void of the
process of Judges who have no jurisdiction or by unopen and disguised violence.” Jeremiah
Black concluded that “if state authorities should disregard their duty to the Constitution and laws
of the Union so entirely to make an attack on you, do not forget, nor let your assistants forget
that they who defend the law is protected by the law.” Black also sent specific instructions to U.S
Marshal Lewis N. Sifford when he faced resistance in Cincinnati stating that in “case of an
attack upon you by state officers, you must defend yourself, and maintain the rights of the United
States, against all lawless aggression.”125 Jeremiah Black asserted the supremacy of federal law
enforcement and gave U.S. marshals the full support of the President as they enforced the
fugitive slave law. Black’s instruction signaled an impending change for federal law enforcement
in general and the Attorney General’s Office in particular. Before his tenure, U.S. marshals
124 Stanley Campbell, Slave Catchers, 88. 125Jeremiah s. Black to Matthew Johnson April 26, 1859; Black to Sifford and Black May 21. Letter Book B/2 Attorney General’s Office, 1859-1861 National Archives Justice and Executive Branch as cited by Campbell, Slave Catchers, 89.
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operated mostly at the discretion of the local district courts, and U.S. Attorneys answered
directly to the president.126 Many of them came from the towns and districts over which they
presided and they likely shared the ideals and beliefs of their fellow neighbors regarding fugitive
slaves. However, Attorney General Black, following the lead of Cushing, began the process of
nationalizing federal law enforcement by reminding U.S. marshals that they had to enforce the
fugitive slave law. This change in federal law enforcement charged U.S. marshals and the
Attorney General by making them the president’s enforcer.
Conclusion
The actions that early American presidents took to recover fugitive slaves provides
critical answers about the development of the law and order presidency. America established
structural law and order during the colonial era to prevent fugitive slaves from escaping and
nationalized it with the fugitive slave clause to the U.S. Constitution. However, the Constitution
did not give presidents explicit authority to recover fugitive slaves. George Washington assumed
he had this authority and began to exercise this power in 1790 through treaty negotiations. James
Madison and his immediate successors followed this pattern and used their commander-in-chief powers to recover fugitive slaves in foreign territories and countries. The Constitution also never gave the president either the implicit or explicit power to recover fugitive slaves domestically.
However, the North’s creation of sanctuary cities forced Congress to delegate this authority to the executive branch in 1850. Presidents Fillmore, Pierce, and Buchanan each took steps to further institutionalize this power by delegating responsibility to the U.S. Attorney General, U.S.
Attorneys, U.S. marshals, and the military. Their actions demonstrate that the power presidents
126 Stephen Creswell, Resistance, and Enforcement: the U.S. Department of Justice, 1870-1893, (Diss. University of Virginia, 1986), 10-18.
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exercise over domestic affairs is much larger than many presidential scholars have suggested.
For decades, scholars have argued that presidents have limited power domestically, but enjoy
unchecked authority in foreign affairs. Aaron Wildavsky, for one, noted that presidents have had much more success in “controlling foreign and defense policy than in dominating domestic policies.”127 However, the actions of Fillmore, Pierce and Buchanan contradicts this well-
established argument.
This political development would not had been possible without the continued resistance
and escape of fugitive slaves. As fugitive slaves escaped into Northern territories, it created a
conflict between those pursuing freedom or equality for the slaves and those committed to the
continuation of slavery. Congress responded to this conflict by delegating the executive branch
the authority to recover fugitive slaves. This political development means that the president's
power to maintain structural law and order emerged because of the need to recover fugitive
slaves over the resistance of Africans and Northern states. The actions of these antebellum era
presidents will continue to influence the president's role in maintaining structural law and order
during and after the Civil War.
127 Michael Beschloss, Presidents of War, (Random House, New York, 2018); Wildavsky, Aaron, “The Two Presidencies” Society 35 no. 2 1998: 22-31
Chapter 3 Emancipation Proclamation: A Promise for a New Law and Order
Before Abraham Lincoln’s presidency, early American presidents maintained structural law and order using executive branch institutions to recover fugitive slaves. When Abraham
Lincoln issued his Emancipation Proclamation, he committed to using these same executive branch institutions to uphold the freedom of fugitive slaves. This Proclamation did not create a new law and order presidency. Rather, it merely promised that the President and the executive branch would protect the freedom of the newly-freed slaves. In other words, the proclamation redefined law and order to apply to the personal liberties of the emancipated slaves, rather than the property rights of slave holders. But Lincoln’s assassination left the presidency to Andrew
Johnson, a man far less committed to that promise. Instead of upholding the freedom of the newly emancipated slaves, Johnson allowed the Southern states to force them back into bondage.
Johnson's actions sparked a massive fight between the executive and legislative branches. Over
Johnson's veto, Congress passed the Civil Rights Act of 1866 which institutionalized the promise of the Emancipation Proclamation. It empowered the president to arrest, indict, and prosecute any police officer or state official for violating the civil rights of African Americans.
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This Act created a new law and order presidency and gave the president the power to
protect African Americans from racial violence. Even though Johnson refused to use that power
to protect African Americans, Congress had durably changed the law and order presidency from
recovering fugitive slaves to protecting African Americans’ political and economic civil rights. 1
Lincoln’s Emancipation Proclamation
After Abraham Lincoln won the presidency, Southern states threatened to secede from
the Union in part because they did not believe he would assist in the recovery of fugitive slaves.
Southern lawmakers argued that the South only agreed to ratify the U.S. Constitution because it
included a fugitive slave clause. When Northern states rebelled against the fugitive slave laws,
southerners claimed that it violated their constitutional rights and forced them to secede from the
Union. Two months before leaving office, James Buchanan articulated this argument in his State
of the Union Address: “[W]ithout [the fugitive slave] provision, it is a well-known historical fact
that the Constitution itself could never have been adopted by the Convention.” The “most
palpable violations” of the Constitution, Buchanan maintained, “consist in the acts of different
State legislatures to defeat the execution of the fugitive-slave law.”2 South Carolina made a
similar argument three weeks later in its secession “Declaration.” South Carolina argued that
Article IV of the Constitution gave it the right to recover their fugitive slaves, a clause that “was
so material” to the Constitution, that without it, the Southern states would not have agreed to its
ratification. Since “the greater number” of the delegates to the U.S. Constitution held slaves,
1 Jeffrey Tulis and Nicole Mellow, Legacies of Losing in American Politics, (Chicago: Chicago University Press, 2018). 2 James Buchanan: "Fourth Annual Message to Congress on the State of the Union," December 3, 1860, The American Presidency Project, ed Gerhard Peters and John T. Woolley.
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“they made their agreement to the Constitution based on the fugitive slave clause.” Even with this constitutional guarantee, Northern states disrupted the fugitive slave recovery process.
Lincoln’s 1860 victory was the final insult for South Carolinians since he was a man that had
“hostile opinions” and “purposes about slavery.” 3
Mississippi secession “Declaration” claimed that the United States had “nullified the
Fugitive Slave Law in almost every free State in the Union, and has utterly broken the compact which our fathers pledged their faith to maintain.” Lincoln’s election was the last offense since he had "opinions and purposes {that were} hostile to slavery.”4 In its secession “Declaration,”
Georgia claimed that for over “twenty years the non-slave-holding States have wholly refused to deliver up to us persons charged with crimes affecting slave property (fugitive slaves and abolitionists that assist them).” The fugitive slave clause, Georgia claimed, was “our main inducement for confederating with the Northern States. Without it, it is historically true that we would have rejected the Constitution.”5 These “Declarations” all claimed that the South would have never joined the Union if the Constitution did not have the fugitive slave clause. They argued that the Northern states violated the Constitution by not recovering fugitive slaves, and the election of Abraham Lincoln finally convinced the South that it must secede from the Union in order to protect its slave property.
Before taking the oath of office, President-Elect Lincoln vowed that he would never
“compromise” on expanding slavery into new territories, but he committed to recovering fugitive slaves according to his constitutional authority. Lincoln told newspaper publisher Thurlow
3 Confederate States of America - Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union, December 24, 1860. 4 Confederate States of America – Mississippi, Secession, January 9, 1861, Yale Law School, Documents in Law, History, and Diplomacy. 5 Confederate States of America - Georgia Secession, January 29, 1861, Yale Law School, Documents in Law, History, and Diplomacy.
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Weed and Senator Lyman Trumbull that “all opposition, real and apparent, to the fugitive slave
[clause] of the Constitution ought to be withdrawn.” 6 When Lincoln took the oath of office, he argued in his Inaugural Address, that the “fugitive-slave clause of the Constitution” is well- enforced, considering that half the country found it reprehensible. He promised to continue its enforcement if the South did not secede from the Union.7
Southern states did not believe him because they believed that Lincoln’s anti-slavery views were just as important as his proposed policies. Runaway slaves dramatically changed the
North’s ideological beliefs about slavery. For decades, southerners crafted a racial ideology citing the works of dubious social and natural scientists such as John Van Evrie, Samuel
Morton, and Josiah Nott to prove that the inferior nature of Africans made their “enslavement a natural condition.”8 According to Evrie, slavery “ensured to the race a greater measure of happiness than ever before known in its history.” At the time, Secretary of War Jefferson Davis thanked Evrie for “exposing the fallacy” of black equality. The South also constructed entertainment industries centered on minstrel shows that characterized Africans as lazy, stupid, and happy-go-lucky. According to Michelle Alexander, "Minstrels projected a greatly romanticized and exaggerated image of black life on plantations with cheerful, simple, grinning slaves always ready to sing, dance, and please their masters."9 These plays characterized slavery as natural and harmless. By the 1850s, minstrel shows were a national and international art form
6 Abraham Lincoln to Thurlow Weed, December 17, 1870, Collected Works of Abraham Lincoln, 1809- 1865, Vol. IV, (Ann Arbor, Michigan: University of Michigan Digital Library Production Services, 2001); Abraham Lincoln to Senator Lyman Trumbull, Dec. 17. 1860, CWAL, 1809-1865. Vol. IV. 7 Abraham Lincoln: "Inaugural Address," March 4, 1861, ed Gerhard Peters and John T. Woolley, The American Presidency Project. 8 John Van Evrie, Negroes and Negro “Slavery”: The First an Inferior Race, The Latter it Normal Condition (Van Evrie, 1853), 2-3. 9 Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, (New York: The New Press, 2010), 169.
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and were performed in front of sold-out audiences.10 These minstrel shows were influential
because most Northerners had little familiarity with plantation life and these shows gave them
their only exposure to that system. The shows conveyed the message that blacks needed whites
to take care of them and slavery achieved this end.11 The South’s intellectual elites also wrote
and spoke with authority about the inherent inferiority of Africans and how slavery benefitted
them. 12 Almost every industry in the South participated in reinforcing this racial ideology.
Fugitive slaves destroyed these Southern narratives when they escaped and told
captivated audiences about their experiences on the plantation. Africans, such as Harriet
Tubman, rescued over 300 slaves, and allowed the nation to see not only the dangers slaves
endured to secure their freedom but also their desire for freedom for their entire race. Frederick
Douglas used his powerful oratory to inspire abolitionist movements. Therefore, runaway slaves
“united all factions of the anti-slavery movement and led abolitionists to justify their
revolutionary resistance to slavery.”13 With an emboldened abolitionist movement, the nation's most protracted fight over slavery happened before the Civil War as ideological battles took place in the newspapers, halls of Congress and state legislatures. On the issue of slavery, the country had no middle ground. Either they believed in the constitutionality of slavery, or they believed that the slaves should live free. Lincoln believed in the constitutionality of slavery, but also personally believed that they should live free. The nuance of Abraham Lincoln's position did
10 William Mahar, Behind the Burnt Cork Mask: Early Blackface Minstrelsy and Antebellum American Popular Culture, (United States of America: University of Illinois Press, 1998), 9. 11 Robert Toll, Blacking Up: The Minstrel Show in Nineteenth-Century America, (New York: Oxford University Press, 1974). 12 Letter from James Madison to Robert J. Evans, June 15, 1819, Writings 8:439–47; Jared Taylor, “What the Founders Really Thought About Race,” The National Policy Institute. 13 Manisha Sinha, The Slave Cause A History of Abolition (New Haven: Yale University Press, 2016), 1- 10.
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not fit within this polarized environment. Several states cited Abraham Lincoln's “hostile
opinions" about slavery as one of their chief reasons for seceding from the Union. They ignored
his assurances that he would protect their slave property. Lincoln tried to overcome this
impending conflict and promised Southerners he would recover their fugitive slaves, even during
their open rebellion against the United States.
Fugitive slaves started to escape from their plantations in droves as soon as the Civil War commenced. An army Captain in Wisconsin reported that slaves flocked to their lines in
“considerable numbers.”14 On March 18, 1861, Lieutenant Colonel George Thomas sent First
Lieutenant A.J. Stemmer a letter stating that four “runaways came to the fort entertaining the
idea that we were placed here to protect them and grant them their freedom.”15 A month later
Brigadier W.S. Harney told Thomas Garnett that “since the commencement of these unhappy
disturbances, slaves have escaped from their owners and have sought refuge in the camps of the
United States.”16 Lincoln still believed that he could resolve this sectional conflict if he proved to
the South that he would continue to recover fugitive slaves. Attorney General Edward Bates
instructed all federal officers that he would charge them with a federal crime if they failed to
enforce the fugitive slave law.17 Military commanders similarly ordered their soldiers to return
fugitive slaves if they escaped behind their lines. The soldiers, including Colonel Ulysses S.
Grant, struggled to follow this order as slaves overwhelmed their army camps. Initially, Grant
refused to accept fugitive slaves, believing they would distract from the mission. When he
arrived in Missouri and Kentucky, he found the army camps populated with fugitive slaves and
14 Brooks, Simpson, Let us Have Peace Chapel Hill: The University of North Carolina Press, 1991), 27-31 15 Lieutenant Colonel Thomas to First Lieutenant A.H. Shemmer, March 18, 1861, Official Records The War of Rebellion of the Union and Confederate Armies, Series 2 volume 1 (Government Printing Office: Washington, DC, 1880), 750 (Official Records). 16 Brigadier W.S. Harney to Thomas Garnett, May 14, 1861, Official Records, S. 2:1: 751. 17 Don Fehrenbacher, The Slave Holding Republic, 248-249.
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their owners demanding their return. He sent letters asking for instructions from General Thomas
and his superiors in Washington, D.C., but received no reply. 18 When he did not receive a
response, he returned the fugitive slaves under the existing fugitive slave law. But Major
General Benjamin Butler changed everything when he decided to accept runaway slaves as
contraband at his Fort Monroe camp. Butler felt no obligation to comply with the fugitive slave
law because he believed the rebel states had no rights under the U.S. Constitution.19 On May 30,
Secretary of War Simon Cameron sent Butler a letter of support and ordered him not to surrender fugitive slaves to disloyal owners.20 Cameron’s letter caused more confusion as he gave the
impression that the army had to return the fugitive slaves of slave owners still loyal to the Union.
While Lincoln preferred that the army return fugitive slaves of loyal owners, Cameron’s order
appeared to leave the decision up to the discretion of local commanders.21 Since each
commander reached his own decision on the issue of fugitive slaves, the order created
inconsistency across the Union army. On August 6, 1861, Congress addressed this inconsistency
by passing the Confiscation Act which “authorized Union authorities to capture the slaves of the
Confederates and use them to further their war effort.”22 Commanders could not capture and
keep the fugitive slaves from slave owners still loyal to the Union because Lincoln feared that it
18 Grant to General Lorenzo Thomas, September 21, 1861 PUSG 2: 291 as cited by Brooks Simpson, Let us Have Peace Ulysses S. Grant and the Politics of War and Reconstruction, 1861-1868, (Chapel Hill: The University of North Carolina Press, 1991), 18. 19 Major General Benjamin Butler to Lieutenant General Winfield Scott, May 24, 1861, Official Records S. 2:1:752. 20 Secretary of War Simon Cameron to Major General Benjamin Butler, May 30, 1861, Official Records, S. 2:1:749. 21 Major General George McClellan to the Men of Western Virginia and to Colonel B.F. Kelly, May 26, 1861, Official Records, S. 2:1:753; Brooks Simpson, Let Us Have Peace, 16; Ulysses S. Grant (Grant) to Captain John Kelton, August 30, 1861, Papers of Ulysses S. Grant (PUSG) April-Sept, 1861 2:154-155; Grant to General Lorenzo Thomas, September 21, 1861 PUSG 2: 291 as cited by Brooks Simpson, Let Us Have Peace, 18-20; Major General H.W. Halleck to Colonel Carlin, January 9, 1862, Official Records, S. 2:1:817; General Orders. 22 An Act to confiscate Property used for Insurrectionary Purposes, U.S. Statutes at Large, 37th Cong Sess I. Ch. 60, August 6, 1861, 319.
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would cause the Border States to join the Confederacy. Border States repeatedly pressed Lincoln
on the enforcement of the fugitive slave law. For example, a committee representing about 100
slave owners from Prince George’s County, Maryland complained to Lincoln that General
Wadsworth refused to enforce the fugitive slave law in Washington, D.C. and would not return
slaves to citizens still loyal to the Union. Lincoln assured them that the General would do right
by them, but never promised they would get their slaves back.23
When General Henry Halleck took over in November, he closed down the army’s
reception of fugitive slaves under General Order No. 3, as he “did not want the Army used as
Negro catchers.” 24 Halleck ordered Colonel George Cook to conduct a search of his camp and
“expel” fugitive slaves, removing the potential backlash of returning fugitive slaves to their masters.25 Fugitive slaves continued to escape, and the issue worsened in early 1862 when
Grant's army successfully seized Fort Henry and Fort Donelson in Tennessee. This victory came
with the vexing problem of handling and managing fugitive slaves that the soldiers confiscated
along the way. 26 Grant, in compliance with General Halleck's original orders, returned these
slaves to their owners. His actions received stinging criticism from the North as Grant returned
old men, women, and children to slavery. Grant defended his actions stating, “I have studiously
tried to prevent the running off of Negroes from all outside places as I have tried to prevent all
other marauding and plundering."27 Lincoln's silence caused confusion and created a significant
backlash for Grant. The confusion surrounding Lincoln’s policies on fugitive slaves even
23 Abraham Lincoln to Maryland Slaveholders, May 19, 1862, CWAL, 1809-1865.vol. V. 24 Simpson Brooks, Let us Have Peace Ulysses S. Grant and the Politics of War and Reconstruction, 1861-1868, (Chapel Hill: The University Press of North Carolina, 1991), 16, 18. 25 Grant to Colonel Cook, December 25, 1861 PUSG 3:342-343. 26 Simpson Brooks, Let us Have Peace Ulysses S. Grant and the Politics of War and Reconstruction, 1861-1868, (Chapel Hill: The University Press of North Carolina, 1991), 19-20. 27 General Orders No. 14, District West Tennessee, February 26, 1862, PUSG 4: 290-291 as cited by Brooks Simpson, 20-21.
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claimed professional careers. Grant wrote to Senator Elihu Washburne that he heard that the
President withdrew Brigadier Steele’s promotion due to his returning of fugitive slaves to their
masters.28 This confusion led Congress to provide greater direction with a second Confiscation
Act which made free all the slaves owned by Confederates, including any fugitive slaves. All
over the South, the army hired these fugitive slaves, established work commitments for them,
and paid them for their work.29 While Congress’ act officially freed the slaves from disloyal
owners, the escape of fugitive slaves forced Lincoln to establish a uniform policy under his draft
Emancipation Proclamation issued on September 22, 1862.
On January 1, 1863, Lincoln issued the final draft of his Emancipation Proclamation, freeing
slaves in the rebelling states. He left the slaves in the Border States within bondage, hoping to
keep those states neutral in the conflict. The Proclamation was a landmark document. For the first time in American history, the federal government freed a large number of African slaves.
The Proclamation stated that “all persons held as slaves within any State or designated part of a
State, the people whereof shall then be in rebellion against the United States, shall be then,
thenceforward, and forever free.”
The Proclamation also declared that the “Executive government of the United States,
including the military and naval authorities” would maintain that freedom.30 Lincoln effectively
changed the president's power from maintaining law and order by recovering fugitive slaves to
maintaining law and order by protecting their freedom. It was just thirteen years prior that
28 Grant to Senator Elihu Washburne, Feb. 15, 1863, PUSG, 7:332-333. 29 Brooks, Simpson, Let Us Have Peace, 27-31. 30 Emancipation Proclamation, January 1, 1863; Presidential Proclamations, 1791-1991; Record Group 11; General Records of the United States Government; National Archives.
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Millard Fillmore argued he had the power to use the U.S. military to enforce the fugitive slave
law and sent troops into Boston, Christiana, and New York. Franklin Pierce recovered one fugitive slave by occupying Boston with the U.S. military. The executive branches of Presidents
Fillmore, Pierce, and Buchanan only interacted with slavery to the extent that they had to recover fugitive slaves. Lincoln's Proclamation changed that responsibility. Lincoln also pushed for the passage of the Thirteenth Amendment which abolished slavery in the United States. By adding it to the U.S. Constitution, Lincoln empowered the federal government to protect the freedom of the Emancipated slaves. However, he would not have the opportunity to lead this effort as he lost his life to an assassin’s bullet.
Andrew Johnson Abandons Structural Law and Order
Andrew Johnson refused to maintain law and order to protect African Americans because
of his commitment to white supremacy and hopes of winning the presidency outright in 1868.
After Lincoln’s assassination, the military and Congress assumed President Johnson would wait
for Congress to reconvene to lay out a specific plan for Reconstruction and protecting the newly
freed slaves. General Grant told his subordinates to divide the South into military districts and
“supervise events until Congress” could restore the Union.31 Johnson refused to wait on
Congress and laid out two proclamations that granted amnesty to a large number of confederates
and created a process to pardon the remaining confederate leaders.32 Johnson’s proclamation
handed the Southern states back to the very people that seceded from the Union and put them in
control of the newly freed slaves. Many Union generals supported Johnson’s plan because they
31 Brooks, Simpson, Let Us Have Peace, 101. 32 Andrew Johnson: "Proclamation 134—Granting Amnesty to Participants in the Rebellion, with Certain Exceptions," May 29, 1865, ed Gerhard Peters and John T. Woolley, The American Presidency Project.
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believed that the outcome of the war had humbled the Confederate soldiers. General Philip
Sheridan in Louisiana said that “magnanimity is the safest and most manly course.” In North
Carolina, Major General John M. Schofield told Grant that “the presence of troops seems almost unnecessary.” Major General William Sherman said that “you could hardly realize… how completely humbled the man of the South is.” Grant likewise told Secretary of War Edwin
Stanton that “submission was perfect” in the South.33 He recommended a total of 80,000 soldiers
to protect against any “disturbances arising from ill feelings” between the white and black race.34
George Meade, however, warned that protection of the freedmen in their rights “render necessary
a military surveillance in each of the rebellious states.” He believed that a “withdrawal of the
military forces would very likely be followed by a war of races.”35 Johnson did not follow this
approach and offered leniency to most of the South. Southerners seized this opportunity and
elected to Congress the former Vice President of the Confederacy, four Confederate generals,
five Confederate colonels, six Confederate cabinet officers, and fifty-eight Confederate members
of Congress. Other Confederate leaders won power in their state legislatures, and some of these men wore their Confederate uniforms when they reported for office.36 Many of these individuals
had not received a pardon for committing treason. The Republican Party expressed outrage at
Johnson because his reconstruction plan restored the Confederates to power, allowed them to
serve in Congress, and gave them authority over the recently emancipated slaves.37
33 USG to Stanton, October 20, 1865, 15:357-358; Meade to USG, November 8, 1865, 15:398—400; USG to Thomas, August, 21, 1865, 15:307.
34 Ulysses S. Grant to Secretary of War Edwin Stanton, October 20, 1865, PUSG 15:357-358. 35 Meade to USG, November 8, 1865, 15:398—400; Brooks Simpson, Let Us Have Peace, 111-112 36 John Hope Franklin, Reconstruction after the Civil War, (Chicago: The University of Chicago, 1994), 42-43. 37 Albert Castel, The Presidency of Andrew Johnson, (Lawrence: The Regent Press of Kansas, 1979), 27.
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Northern Republicans leveraged the only power they had and refused to seat the former
confederates in Congress. However, they could not stop the state legislatures from seating the
former Confederates, and this had disastrous consequences for the freedmen. Mississippi created
new laws, called black codes that treated every freedmen like a fugitive slave. The laws required
each African American to provide written evidence annually that they had an agriculturally-
based job for the upcoming year. South Carolina forced African Americans to pay taxes up to
$143 ($2,058 AFI) if they took any employment other than farming. White landowners could
legally withhold an entire year’s pay from a freedmen if they quit their labor contract before it
expired. If the freedmen either quit their job or ran away, a police officer could issue a warrant,
and any person could legally arrest them and return them to their employer and receive five
dollars for their effort. Lawmakers took this provision directly from prior fugitive slave laws. If
any person aided or assisted freedmen in escaping their duties or provided them with food or
shelter, they could be fined up to $500 ($7,200 AFI) and face six months in prison.38 The law tasked the police and sheriff’s office with recording the names of every freedmen under 18 years of age. If their parents could not provide for them, the court could hire them out, giving preference to their “former masters.” The law also allowed for the control of the “said apprentices” and gave their “master or mistress” the power to “inflict moderate corporal chastisement.”39 Police officers enforced these labor laws, terrorized black plantations, and
failed to arrest white citizens for murdering African Americans. These black codes reduced
African Americans to slavery.
38 Laws of the State of Mississippi, Passed at a Regular Session of the Mississippi Legislature, held in Jackson, October, November and December, 1965, Jackson, 1866, pp. 82-93, 165-167.
39 American Legal history, An act to confer Civil Rights on Freedmen, and for other purposes., Laws of Mississippi. (1865). http://www.houseofrussell.com/legalhistory/alh/docs/lawsofmiss.html.
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Republican newspapers began to report on instances of vicious attacks against the
freedmen during that summer and fall. The precarious status of the freedmen forced Congress to
act on their behalf, sometimes overcoming the veto of Andrew Johnson. To address the violence
and black codes, Congress passed the Civil Rights Bill of 1866. The bill made every person born
in the United States a citizen, except Indians. The most important provision of the Civil Rights
Bill was Section II which stated:
that any person, who under the color of law shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment or penalties on account of such person having at any time been held in a condition of slavery reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, facing a one thousand dollar fine and up to one year in jail. 40
No one involved in crafting this bill fully understood the power of this provision.
However, this “color of law” provision created a new law and order presidency by giving the federal government the power to indict police officers and state officials when they violated the
rights of African Americans.41 Sections VIII and IX of the Act empowered the President of the
United States to use his “discretion,” in directing the judge, marshal, and district attorney in
arresting and trying individuals suspected of violating the civil rights of freedmen. It also made it
“lawful for the President of the United States, or such person as he may empower for that
40 An Act to protect all Persons in the United States in their Civil April 9, 1866, Statutes at Large, Thirty- Ninth Congress. Sess. I. CH. XXXI. 1866. 41 This color of law” provision was later inserted in the Ku Klux Klan Act of 1871. It was then revised into Section 5510 in the Revised Statutes of 1873; then became Section 20 of the Criminal Code of 1909; then became Section 52 of Title 18 US Code in 1925 it became and finally became Section 242 of Title 18 of the US Code. The “color of law” provision is still on the books today and will be referred interchangeably throughout the rest of the dissertation as “color of law” or Section 242.
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purpose, to employ such part of the land or naval forces of the United States, or of the militia, as
shall be necessary to prevent the violation and enforce the due execution of this act.”42
This law represented an extraordinary expansion of presidential power. Presidents would
now have the authority to arrest citizens who violated the civil rights of African Americans. At
this point in history, presidents only provided indirect supervision over crimes that had clear
federal jurisdiction, like customs and postal violations. Congress now felt the need to delegate
additional authority to the president to maintain structural law and order on behalf of African
Americans. The sponsors of this civil rights bill believed they were building on the power
presidents already had under the fugitive slave law. When Senator Lyman Trumbull introduced
the bill, he said: “That no question might arise, as to the constitutionality of the law, as all the
provisions, which relate to the enforcement of the act, were borrowed from the celebrated
Fugitive Slave Law enacted in 1850.” He concluded his speech saying: “The act that was passed at that time (Fugitive Slave Law), for punishing persons who should aid Negroes to escape to freedom is now to be applied to this bill to the punishment of those who shall undertake to keep them in slavery.”43 Senator Trumbull made the connection between the law and order president
created in the Fugitive Slave Act and the law and order president empowered in the 1866 Civil
Rights Bill. Structural law and order changed as presidents would no longer recover fugitive
slaves, but would use their power to protect African Americans. Johnson vetoed the bill, thereby
forcing Congress to override his veto.
While Congress delegated President Johnson the authority to protect African Americans,
he refused to use that authority and left African Americans open to widespread violence. On
42 An Act to protect all Persons in the United States Sec VIII and IX 43 Congressional Globe, 39th Congress, 1st session., 1866, 474-476; William H. Barnes, History of the Thirty-ninth Congress of the United States, (New York: Harper & Brothers, 1868), 192.
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May 1, 1866, a violent mob in Memphis massacred black military families, killed forty-six
freedmen, burned down twelve black schools and four churches, injured another seventy-five blacks, and raped five black women.44 General George Stoneman intervened the next day to stop the massacre. Congress subsequently opened an investigation into the Memphis riot and asked the freedmen about their experiences. Cynthia Townsend said that “she never saw so many
(white people) together… they gathered from every direction.”45 Ms. Lucy Tibbs testified before
Congress that a white mob killed her brother, Bob Taylor of the 59th regiment, stole over $300
($8,451 AFI), and raped her. Mrs. Sarah Song testified that a white mob pulled her husband out
the house, shot him in the head three times, and kicked him because he did not die quick
enough.46 Others described “watching men set fire to their houses, churches, and schools, shoot
pistols at occupants as they fled the structures, and ignore others’ pleas that the rioters cease
shooting to allow their children to escape the flames.”47 Grant reported to Secretary of War
Stanton that the “victims were all helpless and unresisting negroes.” The mob stole an “aggregate
sum” of $19,004 ($270,000 AFI) and the total cost of the burned down buildings totaled $53,379
($789,000 AFI). Memphis authorities refused to help the freedmen, and the military did not have
enough soldiers to stop the riot. General Grant subsequently issued General Order No. 44 that
directed commanders in the rebellion states to arrest all persons charged with a crime “in cases
44 Brook Simpson, The Reconstruction Presidents, (University of Press Kansas: the United States of America, 1998), 114; Aptheker, A Documentary History of the Negro People in the United States, (New York: Citadel, 1951), 559. 45 Hannah Rosen, Terror in Freedom Citizenship, Sexual Violence, and the Meaning of Race in the Post Emancipation South, (Chapel Hill: The University of North Carolina Press, 2009), 3. 4639th Congress, 1st Session, U.S. Serial Set, Number 1274 House Report 101, 160-61222-3. 47 Hannah Rosen, Terror in Freedom Citizenship, 6.
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where the civil authorities have failed, neglected, or were unable to arrest and bring such parties
to trial.”48
Even with this order, violence against African Americans continued throughout the
South. In July, a white mob in New Orleans attacked a Republican political convention, killed
thirty-five African Americans, and wounded another 170. Although the police carried out this
attack, President Johnson refused to order their arrest using the “color of law” provision passed a
few months earlier. General Grant, operating under General Order No. 44, ordered the arrest of the instigators of the riot. Attorney General James Speed squashed the order saying that the military did not have the power to arrest anyone and their authority ceased once they put down the riot. Johnson refused to protect the freedmen, and instead reported to Congress that the South
had “occasional disorders” that are “rapidly disappearing.”49
The violence carried out against the freedmen made Johnson's lenient policy look
misguided. The Republicans took a drastic step to ensure the protection of African Americans
and passed the Fourteenth Amendment to the U.S. Constitution. This amendment made all
African Americans U.S. citizens and prohibited states from depriving “any person of life, liberty,
or property, without due process of law.”50 The “citizenship” and “due process” clauses were
important parts of the Fourteenth Amendment because they ensured the constitutionality of the
1866 Civil Rights Bill. The due process clause, in particular, provided the federal government
48 Lieutenant General Grant, General Order No. 44, PUSG 16: 228; Ulysses S Grant to Edwin Stanton, July 7, 1866, PUSG 16: 233-234. 49 Andrew Johnson: "Special Message," December 18, 1865, ed. Gerhard Peters and John T. Woolley, The American Presidency Project. 50 U.S. Const. amend. XIV, § 1.
91 with the authority to protect African Americans from police and state-sanctioned violence and violations of their civil rights.
The Republicans realized they did not have a partner in the White House when it came to protecting African Americans. They decided to run against President Johnson’s policies and won veto-proof majorities in the 1866 midterm election. Afterwards, Grant told Secretary of War
Edwin Stanton that the administration needed to “keep a military force in all the lately rebellious states to insure {sic} the execution of law and protect life and property against the acts of those who, as yet, will acknowledge no law but force.”51 Grant said the “the provisions of the Civil
Rights Bill (including the “color of law” provision) could not be enforced properly without the aid of Order No. 44 or a similar one”, and he understood that Johnson had no plans to protect
African Americans, thereby leaving the Congress and military to act outside of the President’s authority.52
After winning the midterm elections, congressional Republicans passed the first Military
Reconstruction Act. This act divided the South into five military districts: (1) Virginia; (2) North and South Carolina; (3) Georgia, Alabama, and Florida; (4) Mississippi and Arkansas; (5)
Louisiana and Texas. Each had its own military commander that would replace the elected governments in the rebelling states and all had the power to use troops to protect African
Americans. The Act also permitted “every person, regardless of color to vote for the delegates to the new constitutional conventions” in those states. The state could be readmitted into the Union once it adopted a new constitution that included black suffrage, established a framework for
51 Grant to Stanton, November 21, 1866, PUSG, 16:387. 52 Grant to Stanton, November 22, 1866, PUSG, 16:389-90.
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holding state elections, and ratified the Fourteenth Amendment.53 Under these rules, the new
state conventions made radical changes--including enfranchising African Americans,
guaranteeing equal protection before the law, and barring former confederates from holding
office.54
Congress also tried to strip the powers of the presidency away from Andrew Johnson by
passing the Army Appropriations Act. This law moved General in Chief Grant’s office to
Washington, D.C., and ensured that Johnson could not remove, suspend, or relieve him from
command without the consent of the Senate.55 These extraordinary provisions moved the
president's law and order responsibilities away from the executive branch to the legislative branch because it made General Grant informally responsible to Congress. However, the Act did not touch the President’s ability to fire and appoint other officials within his administration.
Later, Congress passed the Tenure of Office Act which limited the president’s ability to remove his appointees without the advice and consent of the Senate.56 Congress approved this measure
in order to protect Secretary of War Edwin Stanton because of his commitment to protect the
newly freed slaves. 57 President Johnson and the Congress continued to fight over these issues
for the remainder of his term. Ultimately, Congress sent a clear message that it expected the
president to maintain structural law and order by protecting African Americans’ civil rights.
53 An Act to provide for the more efficient Government of the Rebel States; Statutes at Large, 39th Cong. Sess. II Ch. 152, 428; March 2, 1867, Albert Castel, The Presidency of Andrew Johnson, 107. 54 Hans Trefousse, Reconstruction: America’s First Effort at Racial Democracy, 54. 55 An Act making Appropriations for the Support of the Army March 2, 1867, 39th Cong. II Sess. Ch. 169, 170, U.S. Statutes at Large, 485-487. 56 An Act regulating the Tenure of certain Civil Offices, March 2, 1867, 39 Cong. II Sess. CH. 153, 154, U.S. Statutes at Large 430-432. 57 The Fortieth Congress started its session on March 4, 1867. It would typically start in December, but Congress feared that Andrew Johnson would undermine their plans for reconstruction. They immediately added more specifics to their first Reconstruction bill, which prescribed how district commanders could register voters and mandated a stricter oath from whites.
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Conclusion
Abraham Lincoln’s Emancipation Proclamation promised African Americans that the
executive branch would protect their freedom. Before making this proclamation, Lincoln initially
tried to appease the South by recovering fugitive slaves and returning them to their owners.
However, fugitive slaves continued to escape their plantations, forcing Lincoln to issue the
Proclamation. When Andrew Johnson became President, he did not share Lincoln’s commitment
and allowed the southern states to return the freedmen back to a form of slavery and he ignored outrageous acts of violence. Congress responded by passing the Civil Rights Act of 1866 and the
Fourteenth Amendment.
The Civil Rights Act of 1866 changed the law and order presidency by giving presidents
the power to protect African Americans. The most important provision of the Civil Rights Bill
was Section II also known as the "color of law" provision. It gave the president the authority to
protect African Americans from police brutality and state-sanctioned civil rights violations.
When Senator Lyman Trumbull introduced the Civil Rights Act of 1866, he said the enforcement
provisions were "borrowed from the celebrated Fugitive Slave Law enacted in 1850.”58 In other
words, the authority the president had under the 1866 Civil Rights Bill derived from the authority
presidents obtained under the Fugitive Slave Act of 1850. Under this law, Presidents Fillmore,
Pierce and Buchanan used the military, U.S. marshals and the Attorney General’s Office to recover fugitive slaves. Now presidents could use those same executive branch institutions to protect the civil rights of African Americans.
58 Congressional Globe, 39th Congress, 1st session., 1866, 474-476; William H. Barnes, History of the Thirty-ninth Congress of the United States, (New York: Harper & Brothers, 1868), 192.
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This political transformation provides crucial information about the development of the law and order presidency. America established structural law and order during the colonial era to prevent fugitive slaves from escaping and subsequently nationalized it with the fugitive slave clause to the U.S. Constitution. The vaguely written fugitive slave clause allowed early
American presidents to recover fugitive slaves at first internationally and then domestically using key executive branch institutions. The Civil War sparked a change in the law an order presidency as Congress empowered the president to use those same executive branch institutions to protect
African Americans civil rights. All Congress needed now was a president willing to use this new power.
Chapter 4 Ulysses S. Grant and the Justice Department's Prosecutions of the Ku Klux Klan
During Reconstruction, Congress delegated additional authority to President Grant to protect African Americans from racial violence. White supremacists learned they could use racial violence and terrorism to obstruct the civil rights of African Americans. Since Congress passed the Thirteenth Amendment, they could not legally reduce Africans to slavery. Congress also passed the Fourteenth Amendment which made all African Americans citizens and prohibited states from violating their due process rights. Congress would not readmit Southern states to the Union without first ratifying this amendment. This amendment gave African
Americans all the rights and privileges of every other white citizen. Congress also passed the
Fifteenth Amendment, giving African Americans a constitutional right to vote. The Thirteenth,
Fourteenth and Fifteenth Amendments made up a black bill of rights during the Reconstruction era—and empowered the federal government to protect them. White supremacists organizations, such as the Ku Klux Klan, concluded they could obstruct the constitutional and civil rights of
African Americans using violence.
Congress passed legislation based on the authority presidents received under the Fugitive
Slave Law of 1850 that empowered President Grant and the Department of Justice to protect
African Americans’ Thirteenth, Fourteenth and Fifteenth Amendment rights. Under Johnson, they had already passed the Civil Rights Act of 1866 which created the significant Section 242
“color of law” provision. Under Grant, Congress approved additional legislation that institutionalized the president’s responsibility to protect African Americans from racial violence.
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Instead of using executive branch institutions to recover fugitive slaves, presidents would now have the authority to use those same institutions to protect African Americans’ civil rights.
The Department of Justice’s Crusade against the Klan
When Grant took the oath of office in 1869, the public looked forward to moving beyond reconstruction. Grant and most of the North no longer had the same level of concern for the
South as they did before, and they grew tired of Congress pushing federal intervention in that region. Grant came to believe that intervening in the South would “erode the party’s voter base in the North.” 1 Northern Republicans believed they accomplished all they needed to as it relates to African American progress. Congress abolished slavery with the Thirteenth Amendment.
States had made African Americans citizens and gave them due process rights when they ratified the Fourteenth Amendment four months before Grant’s election. A month after Grant’s
Inauguration, Congress passed the Fifteenth Amendment, extending African Americans the constitutional right to vote. For the white abolitionist and white progressive sympathizers, the mission in the South had been accomplished. Anti-slavery societies throughout the country disbanded in part because they believed that the freedmen could protect themselves with their right to vote. 2 Northerners also witnessed great progress among some African Americans.
Throughout the South, former slaves and free Africans won political office in the Congress and state legislatures. As Grant said in his annual message to Congress, “The freedmen, under the protection which they have received, are making rapid progress in learning, and no complaints are heard of for lack of industry on their part where they receive fair remuneration for their
1 Brooks Simpson, Reconstruction Presidents, 130-135. 2 Ibid.,136.
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labor.”3 Grant did not say anything else about the newly freed slaves in his 7,774-word annual
message. But while Grant painted this rosy picture, the Ku Klux Klan had begun to terrorize and
murder African Americans throughout the South.
According to historian Eric Foner, the Ku Klux Klan set out to “destroy the Republican
infrastructure, undermine the Reconstruction state, reestablish control of the black labor force,
and restore racial subordination in every aspect of Southern life.”4 African Americans from the
South testified before Congress that the Ku Klux Klan used violence to try to control them
politically, socially, and economically. They whipped, beat, and maimed African Americans for
trivial offenses such as failing to keep "stove wood in the kitchen." In other instances, the Ku
Klux Klan used violence to drive African Americans away from fertile soil or punish them for
not working in a sharecropping profession. In Tippah County, Mississippi, the Klan rounded up
seventy African Americans and threatened to whip them if they voted for the Republican ticket.
Sometimes they beat or killed African Americans for speaking openly against the Klan.5 Willis
Johnson testified that the Klan made him promise not to vote for the Republican ticket.6
Charlotte Fowler, a black grandmother in Livingston, Alabama, testified that white men came to
her house and shot her "poor old man" in the head. He did not die right away, and every time he
breathed, his brains would come out a little. The men walked over him, and while he struggled to breathe, they burned him through his shirt with a fire chip.7 John Childers testified that he had
3 Ulysses S. Grant: "First Annual Message," December 6, 1869, Gerhard Peters and John T. Woolley, The American Presidency Project. 4 Eric Foner, A Short History of Reconstruction, 1863-1871, (New York: Harper & Row, 1990), 184 5 .Allen Trelease, White Terror The Ku Klux Klan Conspiracy, (New York: Harper & Row Publishers, 1972), 287-288, 276. 6 Testimony Taken by the Joint Select Committee to Inquire into the Conditions of Affairs of the Late Insurrectionary State, South Carolina Volume I. July 3, 1871 (Washington: Government Printing Office, 1872), 326 (Here After Joint Select Committee). 7Ibid., 387.
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received threats and told not to vote for the Radical Republicans. He came back from a trip and
found that a white man had beat his young daughter to death for allegedly neglecting her servant
duties. He said that he along with the many other freedmen had been threatened at polling places
and forced to support the conservative ticket.8 In October 1869, an African American state
legislator received over 100 lashes in part because he refused to resign and also because he
named his son after a prominent Republican named Foster Blodgett.9 At Barnett Station in
Georgia, the Klansmen beat eleven African Americans almost to death, shot and killed another
four, and raped a sixteen-year-old girl. The Georgia Klan also attacked Perry Jeffers. When they
opened fire on his house, he returned fire and killed one of the Klansmen. The Klan returned to
his home on a later date, and Perry and four of his sons escaped--leaving behind his wife and
disabled son. Perry mistakenly believed that they would not harm them. But they dragged his son
out of the house with all the furniture, shot him eleven times, threw the body on the furniture,
and burned it. Then they took a cord and hung Perry's wife, but she survived the attack. Perry
tried to leave town with his sons, but six men converged on them, took him and his sons off the
train, and killed them.10
These attacks by the Ku Klux Klan used politically motivated terrorism to squash the
Republican Party in the South. The Klan increased its level of violence as African Americans received their right to vote under the newly-ratified Fifteenth Amendment.11 A month after the
states ratified the Fifteenth Amendment, Grant sent six military companies into North Carolina to
8 Joint Select Committee, Alabama Volume III, November 1, 1871, (Washington: Government Printing Office, 1872), 1,961. 9 Allen Trelease, White Terror: The Ku Klux Klan Conspiracy, 235. 10 ibid., 230. 11 Ibid., 384.
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assist Governor Holden after the Ku Klux Klan terrorized African American voters. 12 Governor
Holden’s political missteps allowed the Klan to marginalize African American voters and helped secure a Democratic victory in the state’s legislature.13 These events, in conjunction with the violence described in congressional testimony, motivated Congress to pass additional law and order measures.
In response to the upsurge in violence, President Grant signed the First Enforcement Act, also known as “An act to enforce the right of citizens of the United States to vote in the several
states of this union, and for other Purposes.”14 Congress acted with the hopes of protecting
African American voting rights. However, they wrote the provisions broadly enough to provide
general protection for African American rights. For example, Section VI prohibited two or more
persons from conspiring to deny a person the enjoyment of their civil rights due to their color or
race. This broadly written “conspiracy” provision, along with the “color of law” provision passed
under Andrew Johnson, would endure throughout Reconstruction and is currently used by the
Department of Justice under Title 18 241 (“conspiracy”) and 242 (“color of law”).15 Congress supported this conspiracy provision with Section IV and X which gave district attorneys, marshals, judges, or "every other officer who may be specially empowered by the President of
12 Brook Simpson, Reconstruction Presidents, 151-153. 13 William Gillette, Retreat from Reconstruction, 91-92. 14 An Act to Enforce the Right of Citizens of the United States to Vote in the Several States of this Union and for Other Purposes U.S. Statutes at Large Vol. XVI, 41st Cong. Sess. II Ch. 14, 140-146, May 31, 1870. 15 Section VI was moved into the revised statutes of 1873 and became section 5508 and then finally called Section 19 of the Criminal Code of 1909. In 1925 it became section 51 of Title 18 of the US Code and then became section 241.
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the United States" the ability to arrest and imprison those violating the rights of African
Americans.16
In totality, the "conspiracy" and "color of law” provisions gave the president the power to
prosecute individual citizens and state officers for using violence or conspiring to obstruct the
civil rights of African Americans. This new Enforcement Act did not immediately put a stop to
the Klan’s reign of terror. On January 17, 1871, Governor Scott of South Carolina requested
federal troops from General Alfred H. Terry, claiming that “such a reign of terror exists, that but
few Republicans dare to sleep in their homes at night.” Grant sent troops to South Carolina and
issued a “law and order proclamation, warning the Klan to disperse.17 Grant then informed
Congress that he needed additional emergency powers to stop the political violence and rampant lawlessness.
Congress fulfilled Grant’s request and passed “An Act to enforce the Provisions of the
Fourteenth Amendment to the Constitution of the United States, and for other Purposes,” also known as the Ku Klux Klan Act. Section III stated: “[I]n all such cases or whenever any such insurrection, violence, unlawful combination, or conspiracy shall oppose or obstruct the laws of the United States… it shall be lawful for the President to deploy the militia and or the land or naval forces.” This section also gave the military the power to arrest members of the Klan and turn them over to federal marshals. Section IV gave the president the power to suspend the writ
16 An Act to Enforce the Right of Citizens of the United States to Vote in the Several States of this Union and for Other Purposes U.S. Statutes at Large Vol. XVI, 41st Cong. Sess. II Ch. 14, pp. 140-146, May 30, 1870. 17 War Department, Letter… Relative to Outrages in South Carolina 41 Cong., Sess III. Senate Executive Doc. 28 (1871 Serial 1440) 1-2 as cited by Everette Swinney, Suppressing the Klan 209-201; Ulysses S. Grant: "Proclamation 197—Law and Order in the State of South Carolina," March 24, 1871. Gerhard Peters and John T. Woolley, The American Presidency Project. Brooks Simpson, The Reconstruction Presidents, 153-155.
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of habeas corpus when the violence of a county or city became difficult for civil authorities to
contain. Whenever the state failed to protect African Americans, the President could use the
“militia, or the land and naval forces of the United States to suppress such insurrections,
domestic violence, or combinations.”18 Congress also imported the "color of law" provision into
Section I of this Act. Taken together, Section II of the Civil Rights Act of 1866, Section VI of
the First Enforcement Act of 1870, and Section III of Ku Klux Klan Act of 1871 gave Grant’s
Department of Justice and the U.S. military unprecedented authority to protect the civil rights of
African Americans.19 Grant now had all the power he would get to maintain structural law and
order.
President Grant immediately used both the military and the Justice Department to destroy
the Ku Klux Klan. Attorney General Amos Akerman told Grant that in several South Carolina
counties the Klan “are organized and armed” and continued to commit acts of violence and
murder. On October 12, Grant issued his warning proclamation to the Klan ordering them to
disperse and leave the counties of York, Marion, Chester, Laurens, Newberry, Fairfield,
Lancaster, and Chesterfield.20 Five days later he issued another proclamation and suspended
habeas corpus in those nine counties. This proclamation allowed the military to arrest individuals
under the supervision of the Attorney General. Everett Swinney estimates that the Justice
Department and the military arrested over 1,500 Klansmen.21 While Grant suspended the writ of
18 An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes. Statutes at Large, 42 Cong. Sess. II CH. 22 April 20, 1871, 13; 19 William Gillette, Retreat from Reconstruction, 27l. 20 Proclamation, (PUSG) volume 22, 161; Ulysses S. Grant: "Proclamation 200—Law and Order in the State of South Carolina," October 12, 1871, Gerhard Peters and John T. Woolley, The American Presidency Project; Senator Scott to Ulysses S. Grant, (PUSG) v. 22, 189-191; Brooks Simpson, The Reconstruction Presidents, 156; Allen Trelease, White Terror: The Ku Klux Klan Conspiracy, 403 21 Everette Swinney, Suppressing the Klan, (Diss. University of Texas, 1966), 230; President Grant to Attorney General Akerman, Sept. 1, 1871, with Letters of Gen. A.H. Terry (Louisville, June 11, 1871) as cited by Allen Trelease, White Terror: The Ku Klux Klan Conspiracy, 401.
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habeas corpus to attack the Klan in South Carolina, he relied heavily on his newly-created
Department of Justice to prosecute the Klan.
The Attorney General subsequently guided U.S. Attorneys as they tried to protect African
Americans. Congress did not establish the Department of Justice for the sole purpose of protecting African Americans. However, they designed this agency at a time when Congress
delegated to the president the authority to maintain law and order on behalf of African
Americans. The ratification of the Fourteenth Amendment, giving African Americans
citizenship and due process rights, occurred just two years before the creation of the Justice
Department. Congress then passed the First Enforcement Act just one month before creating the
Department of Justice. And four months prior to creating the Justice Department, the states ratified the Fifteenth Amendment, giving African Americans the right to vote. A year after the
creation of the Justice Department, Congress passed the Ku Klux Klan Act and inserted the
“color of law” provision. Therefore, the creation and development of the Department of Justice
occurred when the President, Congress, and the entire criminal justice apparatus were focused on
protecting African Americans from racial violence. Former Attorney General Homer Cummings
observed that “the establishment of guarantees to protect the newly acquired civil and political
rights of Negroes was to be the most difficult, the most dramatic and the most sordid task to be
performed by the new Department of Justice.”22 Luther Huston points out that the Justice
Department "spent its earliest years of existence in warfare with the forces in the Southern States
that refused to accord Negroes those rights bestowed upon them by the Constitution and the
laws. United States Attorneys, Marshals, and federal troops were the forces the Attorney General
22 Homer Cummings and Carl McFarland, Federal Justice Chapters in the History of Justice and the Federal Executive, (New York: The McMillian Company, 1937).
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led into battle."23 The Department of Justice had evolved since Congress created the Attorney
General’s Office with the Judiciary Act of 1789. Congress initially viewed position as akin to a
legal counselor for the government rather than a subordinate to the president. This all changed
when George Washington gave the position cabinet rank in 1792.24 It was actions like these,
along with the actions of a few assertive Attorney Generals that moved the Attorney General
from its quasi-judicial position into a legitimate cabinet-level position.25 Attorney Generals did
not have law enforcement responsibility until the Fugitive Slave Act of 1850 required the
executive branch to enforce the law. Attorney Generals from 1850 through 1860 firmly
established their primary role in helping the president maintain structural law and order. The
actual structure of the Department of Justice was ironically borrowed from Jefferson Davis and
the Confederate states. Davis was filling clerk positions in an office called the “Department of
Justice” as early as August 1861. This Department of Justice had oversight over judges, clerks,
marshals, and attorneys.26 The United States Department of Justice replicated this exact
structure and the Attorney General would use that oversight to protect African Americans.
Throughout the nation, U.S. Attorneys contacted and corresponded with the Attorney
General over both routine and serious prosecutorial matters. For example, Akerman sent
instructions to the U.S Attorney of Huntsville, Alabama, regarding his duty to prosecute
violations of the enforcement acts without regard for party. 27 In turn, U.S. Attorneys contacted
23 Luther Huston, Department of Justice, (New York: Praeger Library, 1967), 73. 24 ibid., 3-7. 25 Ibid., 7-10 26 Journal of the Congress of the Confederate States of America, 1861-1865 [volume 6] eighty-fifth day--Saturday, April 25, 1863; Journal of the Congress of the Confederate States of America, 1861-1865 [volume 4] eighty-fifth day—January 23, 1865.
27 National Archives RG60 Microfilm M701C Letters Sent by the Department of Justice: Instructions to U.S. Attorneys and Marshals, (Roll 3: Oct. 27, 1871- Apr. 23, 1871), 87. Attorney General Akerman to John Ellinis. Dec. 20, 1871.
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the Attorney General to report outrages conducted by the Klan. When U.S. Attorneys and
marshals became confused about the new processes described in Ku Klux Klan Act, U.S.
Marshal Johnson sent a letter to Akerman and told him that he did not know what to do with his
prisoner because he had not received the “act of Congress (KKK Act),” adding, “Please send instructions.”28 D.T. Corbin, South Carolina’s U.S. Attorney, had similar questions about how to
handle prisoners under the new Act. Attorney General Akerman told him that “all persons
arrested by the military, no matter to which clans they belong, should be formally delivered to
the marshals as required by the third section of the Act of April 20, 1871.”29
Attorney General Akerman also sent the U.S. Secret Service into the South to infiltrate
the Klan with undercover operatives, telling Colonel Hiram Whitley to “employ capable and trusty persons to detect parties” that have committed these violent crimes, and instructing him to
“report back to the Attorney General.” 30 The Secret Service began to run undercover
operations, posing as immigrants or peddlers to infiltrate the Ku Klux Klan.31 These
correspondences represent only a fraction of the letters and instructions sent between the
Attorney General, the U.S. Attorneys, and the Secret Service and show that the Attorney General had a firm grasp on the prosecutions and investigations carried out against the Ku Klux Klan.
They also demonstrate a Justice Department actively using its law and order powers to prosecute
28 Marshal L.E. Johnson to Attorney General Akerman, May 16, 1871, National Archives RG60, Letters Received by the Department of Justice from South Carolina, 1871- 1884 Source-Chronological File (SCF) South Carolina Jan. 1871- Oct. 1872 M947 Roll 1, 146. 29 Attorney General Akerman to U.S. Attorney D.J. Corbin, December 6, 1871, National Archives, ibid., 90; Attorney General Akerman to U.S. Attorney D.J. Corbin, December 26, 1871, National Archives ibid., 109. 30 Akerman to Whitley Letters to Executive Officers and Members of Congress RG 60 June 28, 1871, General letters 777 to 778 as cited Everette Swinney, Suppressing the Klan, 186. 31 Ibid., 187
105 violations of African American civil rights under the Acts passed by Congress (See Figure 4-1 through 4-6)
106
Criminal Prosecutions under the Enforcements Acts in Mississippi and South Carolina South Carolina Mississippi SC MS Conviction Conviction Year Indictments Conviction Dismissal/Acquittals Rate Indictments Conviction Dismissal/Acquittals Rate
1870 0 0 0 0% 0 0 0 0
1871 112 54 58 48% 0 0 0 0
1872 96 86 10 90% 490 356 134 73%
1873 554 14 540 3% 268 184 84 69%
1874 555 0 555 0% 120 57 63 48%
1875 9 6 3 67% 187 6 181 3%
1876 1 0 1 0 4 0 4 0
1877 58 2 56 3% 6 0 6 0
Total 1385 162 1223 12% 1075 603 472 56%
Figure 4-1 Sources: Department of Justice. Annual report of the Attorney General of the United States, by Attorney General Amos Akerman (The enforcement act prosecution statistics come from the Attorney General Reports 1871-1873 and 1876-1877. The statistics for years 1874 and 1875 come from William Gillette’s “Retreat from Reconstruction”)
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DOJ Convictions under the Enforcement Acts in Mississippi and South Carolina
400
350 356
300
250
200 184 150
100 86 50 54 57 14 0 0 0 0 6 0 02 1870 1871 1872 1873 1874 1875 1876 1877
SC Conviction MS Conviction
Figure 4-2 Sources: Department of Justice. Annual report of the Attorney General of the United States, by Attorney General Amos Akerman (The enforcement act prosecution statistics come from the Attorney General Reports 1871-1873 and 1876-1877. The statistics for years 1874 and 1875 come from William Gillette’s “Retreat from Reconstruction”)
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DOJ Indictments under the Enforcement Acts in Mississippi and South Carolina 600 554 555 500 490
400
300 268
200 187 120 100 112 96 58 0 0 0 9 14 6 1870 1871 1872 1873 1874 1875 1876 1877 SC Indictments MS Indictments
Figure 4-3
Source: Department of Justice. Annual report of the Attorney General of the United States, by Attorney General Amos Akerman (The enforcement act prosecution statistics come from the Attorney General Reports 1871-1873 and 1876-1877. The statistics for years 1874 and 1875 come from William Gillette’s “Retreat from Reconstruction”)
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Comparison of Criminal Prosecutions in South Carolina and Mississippi to the Rest of the Confederacy Remaining States South Carolina and Confederate States Mississippi (RCS) Year Conviction Conviction Indictments Conviction totals Rate Indictments Convictions Rate 1870 0 0 0% 16 0 0% 1871 112 54 48% 78 54 69% 1872 586 442 75% 17 6 35% 1873 822 198 24% 327 268 82% 1874 675 57 8% 215 40 19% 1875 196 12 6% 25 4 16% 1876 5 0 0% 103 2 2% 1877 64 2 3% 69 4 6% Total 2460 765 31% 850 378 44% Figure 4-4
Source: Department of Justice. Annual report of the Attorney General of the United States, by Attorney General Amos Akerman (The enforcement act prosecution statistics come from the Attorney General Reports 1871-1873 and 1876-1877. The statistics for years 1874 and 1875 come from William Gillette’s “Retreat from Reconstruction”)
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Comparison of DOJ's Enforcement Act Convictions 500 450 400 350 300 250 200 150 100 50 0 1870 1871 1872 1873 1874 1875 1876 1877
South Carolina and Mississippi Conviction totals Remaining Confederate States Convictions
Figure 4-5 Source: Department of Justice. Annual report of the Attorney General of the United States, by Attorney General Amos Akerman (The enforcement act prosecution statistics come from the Attorney General Reports 1871-1873 and 1876-1877. The statistics for years 1874 and 1875 come from William Gillette’s “Retreat from Reconstruction”)
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Comparison of DOJ Enforcement Act Indictments 900
800
700
600
500
400
300
200
100
0 1870 1871 1872 1873 1874 1875 1876 1877
SC & MS Indictment Totals RCS Indictments totals
Figure 4-6
Source: Department of Justice. Annual report of the Attorney General of the United States, by Attorney General Amos Akerman (The enforcement act prosecution statistics come from the Attorney General Reports 1871-1873 and 1876-1877. The statistics for years 1874 and 1875 come from William Gillette’s “Retreat from Reconstruction”)
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Of 3,310 indictments, South Carolina and Mississippi made up more than 74% (2,460) of
the cases. While it appears that the remaining Confederate states had respectable indictment and
conviction numbers, a closer examination reveals that North Carolina had over 65% (559) of
those cases. Meanwhile, Texas, Arkansas, and Louisiana only had 40 indictments combined
throughout six years. On average, the Justice Department had only two indictments per year in
these states. Overall convictions in all states fell dramatically from 1875 to 1877. While the
Justice Department managed to get 1,119 convictions from 1871 to 1874, there were only 24 convictions from 1875 to 1877. Several reasons explain the decline in convictions and the low overall success rate after 1874. Everette Swinney points out the prosecutions dropped after 1874 because the Klan abandoned its tactics as other white supremacists’ groups emerged in their
place. These included “the rifle clubs and Red Shirts of South Carolina, the White Liners of
Mississippi, the White Man’s Party in Alabama and the White Leaguers of Louisiana.”32 While
the Klan focused its energy on African American citizens and some Republicans, these new
terrorist groups assassinated elected Republican officials and committed massacres against the
freedmen. While Swinney’s theory makes is supported by the facts, it’s also important to consider the Justice Department’s challenging bureaucratic and political environment.
Bureaucratic Barriers to Maintaining Law and Order
The Justice Department lacked the administrative structure necessary to continue its
prosecution of the Ku Klux Klan. The Enforcement Acts appropriated very little money for
protecting African Americans and this limited the U.S. Attorney’s effectiveness. At the end of
1873, Grant directed the Attorney General to “reduce the expenses of that Department
32 William Gillette, Retreat from Reconstruction, (Baton Rouge: Louisiana State Press, 1979), 43
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(Justice).”33 Congress also paid the U.S. Attorneys a salary of $200 ($3,599 AFI) annually
which, according to Akerman, did not measure up to the “liberal reward” of the private sector.
These low salaries meant that the Justice Department could only recruit U.S. Attorneys with little experience. The lack of expertise and qualifications to prosecute large-scale Ku Klux Klan conspiracies made it difficult to secure convictions. As Akerman explained to the Congress:
“[T]he general professional service which these officers perform is of the highest value of the government. They are opposed by skillful adversaries, and such men cannot be expected” to
abandon the private sector for government work without the appropriate level of pay.34 Without
the bureaucratic structure needed to stop the violence altogether, southern politicians used
violence and intimidation to spark a political comeback for the Democratic Party.
Accusations of Partisan Law and Order
The Democratic Party also undermined the Justice Department’s efforts by painting them
as crude partisans. Democrats successfully leveled this charge because Justice's prosecutions and
Grant’s military interventions only showed up in states where African American votes counted the most (Mississippi, South Carolina, and Louisiana). While the Justice Department did not indict many Klan members in Louisiana, Grant did send the military to that state to keep terrorist organizations from forcefully removing Republican elected officials. For example, in the summer of 1874, the White League of Louisiana murdered a black state senator, arrested several prominent Republicans, hung several freedmen in the Coushatta massacre, physically disrupted
33 Ulysses S. Grant, Fifth Annual Message, December 1, 1873, ed Gerhard Peters and John T. Woolley, The American Presidency Project. 34 United States Congressional serial set. 1454, Annual Report of the Attorney General, Letter from the Attorney General Transmitting his Report to Congress, January 31, 1871, 2.
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the organization of the state’s legislature and demanded to have their seats in the assembly.35
General Sheridan declared the Democrats as “banditti” and removed them with military force.
This action provoked a political backlash. A Louisiana newspaper stated that Grant had “thrown
off even the flimsy pretense of being the chief Civil Magistrate of the country and grasping the
sword essays to play the role of Caesar.” James Garfield called it “the darkest day” for the future
of the Republican Party. The New York Times claimed that Grant’s policy in Louisiana was
"ruinous, not only to his party but to the fundamental provisions of the Government."36 Grant explained to the Senate that the lawless massacres, riots, and murder committed by the
Democrats in that state required military action. Grant could not contain the political damage thanks to his inconsistent interventionist policy. He intervened in the election years of 1870,
1872, and 1874 and even then only in states where African American votes could carry
Republicans to the majority. In states where Republicans depended more on white voters than black ones, he showed a hesitance to intervene on behalf of African Americans.37 He also could not shake the partisanship charge because almost every African American supported or express support for the Republican ticket.
The Justice Department’s prosecutions of the Klan solidified the belief among African
Americans that their political, social, and economic status rested on which party controlled the
White House--and by extension, the Justice Department’s bureaucracy. African American voters threw their support to the Republican Party, and Republicans in turn protected African
Americans from racial violence. Within this political context, the Justice Department’s structural
law and order actions reflected the partisan and racial preferences of the party holding the White
35 Brooks Simpson, Reconstruction Presidents, 172. 36 Ibid., 176-178 37 Ibid., 170-190
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House. These dynamics made it difficult to dispute the connection between maintaining structural law and order and Grant’s political desire to increase African American turnout. Over time, it became politically infeasible to continue to protect African Americans in the South.
Every massacre or riot that killed African Americans garnered attention from the media that would quickly fade. However, every bayonet the President sent into the state to reverse these violent acts reeked of political opportunism and caused the public to blame the President for the disorder.38 This strategy worked for the Democrats, and they successfully took over the House in the 1874 election which effectively ended Reconstruction.
Conclusion
For eight years during Reconstruction, the Department of Justice used the Civil Rights
Act of 1866 and the First Enforcement Act to protect African Americans from racial violence.
These acts collectively made it a federal crime to deny African Americans their civil rights under the Thirteenth, Fourteenth, and Fifteenth Amendments. These two laws contained two key provisions that would serve as the statutory basis for the president’s power to protect African
Americans from racial violence. Section II of the Civil Rights Act made it a misdemeanor to deny a person their civil rights under the color of law due to race or previous status as slaves.
Congress enacted this “color of law” provision to combat police brutality and prevent state officials from using their authority to deny African Americans their civil rights. The Department of Justice continues to use this provision to prosecute police officers for killing unarmed African
Americans (currently amended and codified as Title 18 Section 242).
38 William Gillette, Retreat from Reconstruction, Brooks Simpson, Reconstruction Presidents, 45-70.
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Section VI of the First Enforcement Act prohibited two or more people from conspiring to “injure, oppress or threaten” any citizen in the “free exercise or enjoyment of any right or privilege secured to them by the Constitution or laws of the United States.”39 This “conspiracy” provision, currently amended and codified as Title 18 Section 241, gives the Justice Department the power to arrest and prosecute mobs for committing acts of violence against African
Americans. Both Acts empowered the president to use the Justice Department, federal law enforcement, and the military to protect African Americans from police brutality and racial violence.
The Reconstruction era provides critical answers about the development of the law and order presidency. During the antebellum era, early American presidents maintained structural law and order using executive branch institutions to recover fugitive slaves. Abraham Lincoln’s
Emancipation Proclamation ended this practice, and he committed to using both the executive branch and the U.S. military to protect the freedom of the newly-freed slaves. During
Reconstruction, Congress passed the Civil Rights Act of 1866 and several Enforcement Acts, which directed those same executive branch institutions to protect African Americans from racial violence. This political development meant that presidents developed the power to protect
African Americans during the Reconstruction era.
The Reconstruction era also shows that the Justice Department has the key role in carrying out the president’s law and order obligations. Presidents had been using their Attorney
Generals and the U.S. military to either recover fugitive slaves or protect African Americans from racial violence. After 1870, the newly created Department of Justice led all efforts to
39 Robert Carr, Federal Protection of Civil Rights: Quest for a Sword, (New York: Cornell University Press, 1947), 57.
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protect African Americans from racial violence which, in turn, led to the widespread arrests and convictions of the members of Ku Klux Klan. However, when the Democrats won the House in
1874, the federal government’s commitment to protecting African Americans came to an end.
Chapter 5 The President Retreats from Law and Order: Presidents Hayes to McKinley
After the failure of Reconstruction in 1874, both the federal government and the president retreated from maintaining structural law and order and protecting African Americans’
Thirteenth, Fourteenth, and Fifteenth Amendment rights. States created a new form of slavery with peonage laws in violation of the Thirteenth Amendment; allowed lynchings of African
Americans in violation of the due process clause of the Fourteenth Amendment, and disenfranchised African Americans in violation of the Fifteenth Amendment. While presidents of this era ignored these violations, they did offer some protections of African Americans’
Thirteenth and Fifteenth Amendment rights. The Justice Department arrested numerous individuals for violating election and peonage laws. However, presidents and their Justice
Departments refused to protect African Americans from lynching and police brutality in accordance with their Fourteenth Amendment due process rights. African Americans learned during Reconstruction that the president had the power to protect them. Based on this experience, they petitioned most of the presidents of this era and their Attorney Generals to reassert their roles in law and order and protect them from racial violence. However, the presidents of this era ignored these requests as racial mobs burned, hung, and shot hundreds of African Americans from 1884 to 1900.
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1876 Presidential Election
When the Democrats took over the House in 1874, it led to the retreat of the law and
order presidency. African Americans from Georgia to Alabama wrote both Congress and
President Grant about the violence and fraud that kept them from voting in the 1874 election,
explaining that their “right to vote in elections had been in large portions of the State, denied,
abridged and rendered difficult and dangerous ever since they became voters.”1 They described how Democrats used assassination, lynching, and intimidation, malicious and frivolous prosecutions to deprive them of their right to vote. These petitioners believed the president had the power to “right our wrongs and diminish our misfortunes.” President Grant told Congress
that the “White Leagues and other societies were formed; large quantities of arms and
ammunition were imported and distributed to these organizations; military drills, with menacing
demonstrations, were held, and with all these murders enough were committed to spread terror
among those whose political action was to be suppressed, if possible, by these intolerant and
criminal proceedings.”2 Grant’s words fell on deaf ears, even as he told Congress that the violent
suppression of the black vote could not be "permitted" in "any part of the country." 3
As the nation prepared for the 1876 election, the Republican Party planned to protect
African Americans from voter intimidation and violence. However, white supremacists’ terrorist
organizations continued to use violence and fraud. Attorney General Alphonso Taft wrote
1 MS. In the National Archives, Washington, DC, Records of the U.S. Senate, 43rd Congress, 2nd session as cited by Herbert Aptheker, A Documentary History of the Negro People, 606. 2 Ulysses S. Grant: "Sixth Annual Message," December 7, 1874, Gerhard Peters and John T. Woolley, The American Presidency Project. 3 Ulysses S. Grant: "Special Message," January 13, 1875. Gerhard Peters and John T. Woolley, The American Presidency Project.
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Republican nominee Rutherford B. Hayes on September 12 and told him that “it is the fixed and
desperate purpose of the Democratic Party in the South that the negroes shall not vote, and
murder is a common means of intimidation to prevent them.”4 The violence and fraud carried out
by the Democratic Party led to a near tie in the Electoral College with Democratic nominee
Samuel Tilden and Hayes both claiming victory in Louisiana, South Carolina, and Florida.
This near tie gave the Democrats a chance to win the presidency for the first time since
1856. While the Democratic nominee, Tilden, only needed one electoral vote to win, the
Democratic Party had major internal divisions between its Northern and Southern wings and
could not press its advantage. Southern Democrats wanted more subsidies, such as the Texas and
Pacific railroad subsidies, while Northern Democrats like Tilden wanted to rein in the corporate welfare associated with these types of programs. Thus, many southern Democrats abandoned
Tilden in favor of the more nationalistic views of the Republicans. Southerners wanted a federal government big enough to spend on redeveloping the South, but small enough to allow them to recreate their racial hierarchies. Southern Democrats knew that Rutherford B. Hayes would support their internal improvements rather than those "Yankee Democrats." 5
The southerners only had to press for patronage and a commitment to reestablish their
racial hierarchies. Hayes’ advisors pushed him to withdraw federal troops from the South and
allow African Americans to live under the authority of their former slave masters.6 Hayes also believed that accommodating white southerners could increase their support for the Republican
Party. To win the presidency, Hayes promised Southerners that he would not intervene in
4 Rayford Logan, The Betrayal of the Negro: From Rutherford B. Hayes to Woodrow Wilson, (New York: First Da Capo, 1997), 14. 5 C. Van Woodward, Origins of the New South, 1877 to 1913, (United States of America: Louisiana State University Press, 1951), 24; Ibid., 14-17. 6 C. Van Woodward, Origins of the New South, 25-30.
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southern affairs, pledged his commitment to internal improvement projects, and offered
patronage in exchange for their support.7 While African American leaders and progressives
feared that the federal government would abandon blacks in the South, Hayes claimed that the
“Thirteenth, Fourteenth and Fifteenth amendments shall be sacredly observed and faithfully
enforced.”8 With these promises in hand, the South acquiesced to Hayes and allowed him to
claim the presidency. Two months later, Hayes ordered troops in South Carolina and Louisiana
back to their barracks and left African Americans to suffer under “home rule.” Hayes insisted that he aimed to protect the freedmen by removing race as the primary dividing line in southern politics. 9
Protecting the Fifteenth Amendment
The South continued its practices of electoral fraud and violence leading up to the 1878
midterm elections, and the Democrats took over the U.S. Senate. 10 Hayes’s accommodationist
policy failed. After the 1878 election, a frustrated Hayes sent Congress his annual message:
The friends of law and order looked forward to the conduct of these elections as offering to the general judgment of the country an important opportunity to measure the degree in which the right of suffrage could be exercised by the colored people and would be respected by their fellow- citizens… in the States of Louisiana and South Carolina at large, and in some particular Congressional districts outside of those States, the records of the elections seem to compel the conclusion that the rights of the colored voters have been overridden and their participation in the elections not permitted to be either general or free. 11
7 Rayford Logan, The Betrayal of the Negro: From Rutherford B. Hayes to Woodrow Wilson, (New York: First Da Capo, 1997), 14-25. 8 Robert Goldman, "A Free Ballot and a Fair Count" The Department of Justice and the Enforcement of Voting Rights in the South, 1877-1893, (New York: Fordham University Press, 2001), 51 9 Brooks Simpson, Reconstruction Presidents, 199-201. 10 Ibid., 203. 11 Rutherford B. Hayes: "Second Annual Message," December 2, 1878, ed Gerhard Peters and John T. Woolley, The American Presidency Project.
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He promised that “No means within my power will be spared to obtain a full and fair
investigation of the alleged crimes and to secure the conviction and just punishment of the
guilty.” Hayes then asked Congress to “make adequate appropriations” to enable the Department
of Justice to enforce the first enforcement act (also known as “An act to enforce the rights of
citizens of the United States to vote in the several States of this Union, and for other purposes”).
But the midterm elections revealed the length Southerners would go to marginalize African
Americans. This inability to extend law and order protections to African Americans beyond
1877 meant that they faced an uncertain political, social, and economic future. Still, Attorney
General Charles Devens called for the continued enforcement of the election laws and planned to
bring violators to trial. The Attorney General left it to the U.S. Attorneys in each district to
determine if there was enough evidence to prosecute election violations.12 By 1880 Attorney
General Charles Devens wondered “whether the time has not now arrived when an election law should be passed which shall take into control of the United States Officials all elections for members of Congress.”13 But such a proposal would never win acceptance in a Congress
controlled in part by Southern Democrats.
The Justice Departments under Presidents Chester Arthur and Grover Cleveland
continued to prosecute fraud associated with federal elections. In the view of these presidents, if
African Americans received their voting rights under the Constitution, then they could protect themselves through their elected representatives. However, the Justice Department only secured
convictions on 38 percent of these cases while gaining 54 percent on all other crimes (See
Figures 5-1, 5-2).
12 Robert Goldman, “A Free Ballot and Fair Count” The Department of Justice and the Enforcement of the Voting Rights in the South, 1877-1893, (New York: Fordham University Press 2001), 51-54. 13 Everett Swinney, Suppressing the Ku Klux Klan: Enforcing the Reconstruction Amendments, 326.
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Department of Justice Prosecutions, 1878 to 1890
Year Election/Enforcement Laws Civil Rights Act All Other Prosecutions
1878 26 0 10,790
1879 146 0 13,571
1880 70 0 9,199
1881 342 95 11,011
1882 265 8 7,221
1883 287 9 7.496
1884 190 23 12,329
1885 283 0 11,694
1886 47 10 14,422
1887 96 6 12,803
1888 131 59 14,409
1889 414 12 14,162
1890 195 13 18,119
Total 2492 235 157,226
Figure 5-1: Source: Annual Report of the Attorney General, 1878-1890. These prosecutions included violations of customs laws, immigration and naturalization, internal revenue laws, post office laws, and a category called miscellaneous, intercourse act and embezzlement
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Department of Justice Convictions, 1878-1890
Year Election/Enforcement Laws Civil Rights Acts Other Prosecutions
1878 0 0 5944
1879 0 0 3191
1880 1 0 4990
1881 166 0 6552
1882 32 1 4124
1883 287 9 4232
1884 26 0 7477
1885 81 0 7233
1886 6 1 9480
1887 45 2 5221
1888 25 14 9161
1889 126 0 8312
1890 46 8 10381
Total 841 35 86,298
Figure 5-2 Source: Annual Report of the Attorney General, 1878-1890. These prosecutions included violations of customs laws, immigration and naturalization, internal revenue laws, post office laws, and a category called miscellaneous, intercourse act and embezzlement.
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Prosecuting election law violations on behalf of African Americans became more difficult as
Southern states adopted legal means for denying African Americans the franchise. States passed
new laws and constitutions that included poll taxes, literacy tests, and sometimes property
requirements. The state legislatures designed some of these laws to suppress the political power
of lower-class whites and populists as well as blacks. However, the net effect was the
disenfranchisement of blacks, the removal of African American elected officials, and a solidly
Democratic Party in the South. Northern Republicans tried to respond with legislation, but the
Senate routinely blocked their bills. By 1894, the Republican Party abandoned their attempts to
protect African Americans in the South. 14
Retreating from Law and Order: Benjamin Harrison to William McKinley
Even while African Americans lost their right to vote all across the South, they became
more concerned with lynching as white supremacists increased their use of this type of violence.
Initially, the Justice Department continued to focus on voting instead of lynching because
lynching was a state issue in which both whites and blacks were both targets. From 1882 to
1885, white citizens had been the primary victims of lynching (See Figure 5-3). In 1883, mobs
lynched twice as many white Americans as they did blacks. During the presidencies of Chester
Arthur and Grover Cleveland, whites made up 57 percent of the 1,200 people lynched.
14 Robert Goldman, "A Free Ballot and a Fair Count,” 57; Matthew Green, Race, Party, and Contested Elections to the U.S. House of Representatives,” Polity vol. 39 2 2007.
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Lynching in America, 1882-1894 180
160
140
120
100
80
60
40
20
0 1882 1883 1884 1885 1886 1887 1888 1889 1890 1891 1892 1893
White Black Linear (Black )
Figure 5-3 Source: The lynching statistics are from the Tuskegee Institute and the NAACP's "Thirty Years of Lynching."
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In the middle of Cleveland’s term, racial mobs had begun to use lynching to reassert
white supremacy and killed far more African Americans than whites for the first time. By the
time Benjamin Harrison took over as President in 1889, whites had been using lynching as a
method to keep African Americans from voting and forcing them to accept peonage servitude.
This development changed the character of lynching and the federal government’s responsibility
to investigate these crimes. The federal government could ignore lynching if it appeared to be
directed at all citizens because the state and local police would have the responsibility to
investigate it as a homicide. However, once lynching became a method to reassert white
supremacy and violate the civil rights of African Americans, the federal government potentially
had the responsibility to investigate and indict individuals for violating the “color of law” and
“conspiracy” provisions.
During Benjamin Harrison’s second year in office, mobs lynched seventy-four more
African Americans than they did whites citizens and pushed the issue of racial violence to the
forefront of African Americans’ civil rights agenda. When the Virginia State Baptist Convention asked Harrison to protect African Americans from lynching, Harrison told them he did not have
the “power to interfere or punish these types of offenses.15 Harrison had the authority to
investigate these lynching cases under the "color of law" and "conspiracy" provisions of the Civil
Rights and Enforcement Acts. But he chose not to use this authority because the nation had
developed a renewed sense of white supremacy. This recommitment to white supremacy, and the
belief in the inherent inferiority of black people, emerged simultaneously with the widespread
15 Benjamin Harrison: "Letter to the Virginia State Baptist Convention on Lawlessness in the Southern States," May 21, 1892, ed Gerhard Peters and John T. Woolley. The American Presidency Project.
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lynching of African Americans. 16 Even with President Harrison claiming not to have the
authority to intervene and stop lynching, African Americans insisted on lobbying both the
president and Congress on this issue.
Ida B. Wells, one of the most notable crusaders against lynching, took her crusade to the president and the public. In her widely publicized pamphlet, “Southern Horrors,” Wells provided
empirical evidence that racial mobs often lynched African Americans for offenses such as
“misdemeanors, mistaken identity, insults, bad reputations, unpopularity, violating contracts,
running a quarantine, giving evidence, and frightening children by shooting at rabbits.”17 Her empirical analysis contrasted with the myth that white southerners only lynched African
Americans accused of rape. She pointed out that in many of the cases where white women charged a black man with rape, the two individuals had a consensual relationship. A mob almost lynched an African American man named Frank Weems, but later found the letter signed by the white women with an appointment to meet him. A mob burned Edward Coy alive, even though
people knew he had a consensual relationship with the white woman that accused him of rape.
She would later testify that she was threatened with violence if she did not level the accusation.
Wells also demonstrated that African Americans, including women and children, often lost their
lives to lynching for offenses that would only lead to a warning or a small fine if adjudicated
through the courts.
16 Muhammad Khali, The condemnation of blackness: race, crime, and the making of modern urban America, (Cambridge: Harvard University Press, 2010), 4. 17 Herbert Aptheker, Documentary History of the Negro People in the United States Volume II, (New York: Citadel Press Book, 1951), 804; Shaun Gabbidon, Helen T. Greene and Vernetta D. Young, African American Classics in Criminology and Criminal Justice, (Sage Publishing: Thousand Oaks, 2001).
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Wells’s public campaign failed to move either Harrison or his two successors, Grover
Cleveland and William McKinley. Almost 1,000 African Americans lost their lives to lynching
during the Cleveland and McKinley administrations. These staggering numbers led Wells to
challenge McKinley to pursue legislation making lynching a federal crime and asked him to
investigate the lynching of a black postmaster. Wells believed that his occupation as a federal
employee warranted an active investigation and prosecution from the Justice Department.
McKinley told Wells that he instructed his Attorney General to look into the matter, but the
Attorney General decided not to prosecute. As the nation entered the 20th century, the barbaric
lynchings of African Americans increased with no end in sight. Some of the victims were burned to death, hung from trees, dragged through the streets and beaten or shot. Meanwhile, President
McKinley refused to respond to these violent acts.
Conclusion
The law and order presidency changed in the post-Reconstruction era as presidents
retreated from protecting African Americans. This retreat did not occur overnight, and it did not
happen all at once. Presidents and their Justice Departments tried to uphold and protect African
Americans’ right to vote. The South overcame potential federal intervention on this issue by
passing laws that were not racially specific, but in reality disenfranchised voters along racial
lines. At the same time, a renewed sense of white supremacy engulfed the nation, paving the way
for the widespread lynching of black people. As this violence escalated, presidents refused to
protect African Americans using the authority they obtained under the "color of law" and
"conspiracy" provisions. African American groups knew that presidents had the legal authority
and institutional means to act. Black leaders such as Ida B. Wells petitioned McKinley and asked
him to protect African Americans from lynching, but he refused to help. When a deranged man
130 assassinated McKinley in 1901, African Americans hoped that Vice President Theodore
Roosevelt would address the lynching epidemic. A Washington-based African American newspaper informed its readers that they “could look confidently to the future with Roosevelt.”18
Only time would tell if this editorial board had reason to place their hopes in the new presiden
18 William Ziglar, “The Decline of Lynching in America,” International Science Review 63 no. 1, (1988) 16 .
Chapter 6 The Rise of Episodic Law and Order
As the nation rolled into the 20th century, a paradox emerged for the law and order president because even as they expanded federal law enforcement powers over the lives of ordinary citizens, they refused to use that power to protect African Americans from racial violence. Presidents ignored the authority they gained during Reconstruction under the
"conspiracy" and the "color of law" provisions and claimed they did not have the power or capacity to stop the lynching and racial violence carried out against African Americans.
Throughout the South, thousands of African Americans lost their lives to lynching because white citizens needed to keep them in their place. Although official segregation emerged in the 1890s, it at times backfired as it created a safe space for black doctors, black colleges, and black entrepreneurs. These achievements undermined white supremacy and at times caused whites to have to compete with black labor. Lynching served as the primary method for reasserting white supremacy. Sometimes the mob took the victim from a prison cell; other times they just kidnapped them from their homes. In the end, these victims had their Fourteenth Amendment due process rights violated and lost their lives in brutal and inhumane ways. The Justice
Department ignored the authority they had obtained under the "conspiracy" and the "color of law" provisions and refused to act.
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Even though presidents claimed that they had no power to protect African Americans,
they embarked on an unprecedented expansion of federal law enforcement to maintain episodic
law and order. 1 When Reconstruction era presidents maintained structural law and order, it
meant protecting African Americans Thirteenth, Fourteenth, and Fifteenth Amendment rights.
Episodic law and order, on the other hand, applies to everyone and focuses on offenses against
property, property rights and sometimes morality (robberies, homicides, rape, drugs, and
prostitution). For most of the nation's history, state and local governments maintained episodic
law and order without assistance from the federal government. However, as street-level crime emerged and began to cross over state lines, early 20th century presidents expanded and
reorganized their federal law enforcement bureaucracy to stop the sale of alcohol, drugs, and
prostitution. Even though presidents expanded their control over federal law enforcement to fight
these types of crimes, they insisted that they could not protect African Americans from lynching.
Theodore Roosevelt’s Retreat and Expansion of Law and Order
President Theodore Roosevelt’s mixed record on lynching dashed the hopes of African
Americans. On the one hand, he used the bully pulpit to denounced lynching and appointed officials committed to ending this barbaric practice. On the other hand, he did not display the same level of aggressiveness with lynching as he did with other issues, and he failed to protect
African Americans from this type of violence. At an early stage in Roosevelt’s administration,
Booker T. Washington informed the President that Mr. George Koester, a revenue collector from
1 Elizabeth Hale, Making Whiteness: The Culture of Segregation in the South, 1890-1940, (New York: Pantheon Books, 1998), 199. 159
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South Carolina, participated in a lynching of an African American before joining the
administration. Koester had held the revenue collector position on an interim basis just two days
before Washington’s letter arrived at the White House.2 Washington asked Roosevelt to fire
Koester if he had either taken part in the lynching “or even by his presence approved [of the]
lynching.”3 Other southern Republicans alerted President Roosevelt as to these allegations because Roosevelt wrote Koester about it two days before receiving Washington’s correspondence.4 Roosevelt eventually withdrew Koester’s nomination, making it clear that he planned to use his appointment powers to take a stand on the lynching issue.
Roosevelt’s most significant impact on lynching and civil rights came from his judicial
appointment in Alabama. Booker T. Washington advised Roosevelt to appoint former
Confederate soldier and Democratic Governor Thomas Goode Jones to a federal judgeship
because he saved an African American from lynching while leading Alabama’s state militia.5 As
Governor, Jones made enemies in the Democratic Party because he undermined the convict-
leasing system, sought to replace sheriffs that failed to protect African Americans from lynching,
and openly denounced lynching. He also caught Roosevelt’s attention because he fought at the
Alabama Constitutional Convention against disenfranchising African Americans. Even with
those pro-civil rights accomplishments, Roosevelt claimed that he had appointed Jones to the
bench because of his “opposition to lynching.”6 Soon after Judge Jones’ appointment, he
2 William Gatewood, “Theodore Roosevelt and Southern Republicans: The Case of South Carolina, 1901- 1904,” The South Carolina Historical Magazine, vol. 70 no. 4 (1969) 251-256.
3 Letter from Booker T. Washington to Theodore Roosevelt, November 06, 1901 TR Papers LOC Theodore Roosevelt Digital Library. Dickinson State University. 4 Letter from Theodore Roosevelt to George R. Koester October 31, 1901. TR Papers LOC; Letter from Theodore Roosevelt to Booker T. Washington, November 11, 1901. TR Papers LOC 5 Brent Aucoin, A Rift in the Clouds: Race and the Southern Federal Judiciary, 1900-1910 (Fayetteville: University of Arkansas Press, 2007), 67. 6 William Ziglar, “The Decline of Lynching in America,” 16. 159
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outlawed Alabama’s peonage system, which had tied African Americans into a new form of
slavery. An excited Theodore Roosevelt admitted to nearly “gushing” with admiration for Jones’ decision, lauding him for his “great moral courage.”7 Booker T. Washington told future
NAACP leader, Oswald Garrison Villard, that African Americans owed Judge Jones a “great
debt” for exposing the peonage system in Alabama.8
Judge Jones also took a significant step in making lynching a federal crime. In September
1904, a racial mob in Huntsville, Alabama, lynched an African American named Horace Maples.
The brutality of this lynching led the Justice Department to indict twelve members of the mob
under the “conspiracy” and “color of law” provisions. 9 One of the indicted suspects, John
Riggins, petitioned the Circuit Court to dismiss the cases because lynching did not violate any
laws of the federal government.10 Judge Jones, citing the Thirteenth and Fourteenth
Amendments, ruled that the mob prevented the state from protecting Maple's due process rights,
and lowered his status to that of a slave.11 However, the Supreme Court ruled in its Hodges’
decision that “the Thirteenth Amendment did not support a federal prosecution because group
violence against blacks was not the equivalent of reducing them to slavery.”12 This ruling
effectively overturned Judge Jones’s decision that declared that the “federal government had the
right and obligation to punish individuals who lynched African Americans.”13 If the Supreme
Court had upheld Jones’ interpretation, President Roosevelt would have selected the judge that
would have finally empowered the federal government to act against lynching.
7 Letter from Theodore Roosevelt to Thomas Goode Jones, June 22, 1903, TR Papers. LOC. 8 Brent Aucoin, A Rift in the Clouds, 57. 9 Revised Statutes, 1878 Title LXX Chapter 7 Sec. 5508 and 5509, 1068. 10 199 U.S. 547 (26 S. Ct. 147, 50 L. Ed. 303) Thomas m. Riggins, appt., v. United States. No. 169. 11 Brent Aucoin, A Rift in the Clouds, 66. 12 "Hodges v. United States 203 U.S. 1 (1906)." 13 Brent Aucoin, A Rift in the Clouds, 79. 159
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Theodore Roosevelt also used his bully pulpit to shape public opinion on lynching—
including a high-profile speech at Arlington Cemetery on Memorial Day.14 Roosevelt’s brief
statement had a profound impact because no other president had been bold enough to denounce
lynching unless the victims came from a foreign country. Some editorial pages praised him
saying that “no president since the War, neither Grant, nor Hayes, nor Garfield, nor Cleveland,
nor Harrison,” would have made these “comments about lynching.”15 Roosevelt’s Navy
Secretary William Moody also condemned lynching from the White House lawn on
Independence Day, saying that mob violence “rendered America’s voice helpless” when it rails against oppression elsewhere. Moody called lynching “unpardonable,” “dangerous,” and
“unjustified” regardless of the circumstances.16
After a racial massacre took place in Evansville, Indiana, Roosevelt wrote a public letter to Governor Winfield Durbin to address the issue. While he repeated the myth that some
lynching victims committed sexual assault, he argued that “lawlessness of this type” punishes the
innocent more than the guilty. According to Roosevelt, lynching was not about treating a
criminal as a criminal but treating the “criminal of a certain color with brutality.” He concluded
that this type of brutality paved the way for other prejudicial acts such as “disenfranchisement,
lower wages and unfair labor practices against African Americans.” All these conditions
Roosevelt deemed unfair and a “reproach to all of us.” 17 In addition, Roosevelt actively shared
his views on lynching through back channels telling Atlantic Monthly writer Clarence Poe that he
14 Theodore Roosevelt, Memorial Address, Arlington National Cemetery, May 20, 1902, “The Works of Theodore Roosevelt, Memorial Edition” http://www.theodore- roosevelt.com/images/research/txtspeeches/11.txt 15 The President and lynching, May 1902. TR Papers LOC Manuscript. 16 “New Law Needed to Stop Lynching,” July 06, 1903. TR Papers LOC Manuscript. 17 Letter from Theodore Roosevelt to Winfield T. Durbin, July 9, 1903, TRP. LOC. 159
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appreciated his denouncement of lynching. Poe described lynching as a diabolic practice and
called for “flexible and enforceable anti-lynching laws that would put police officers in jail for
every victim lynched from their prisons.”18 Roosevelt’s internal endorsement of an anti-
lynching law indicates that he wanted the federal authority to protect African Americans from
lynching.
Though Roosevelt made symbolic gestures against lynching, he ultimately failed to
intervene, and racial mobs lynched over 693 African Americans during his eight years in
office.19 In March 1904, a racial mob broke into a jail in Springfield, Ohio, lynched Richard
Dixon, and proceeded to burn the homes of other African Americans.20 U.S. Attorney W.R.
Leaken pressed Attorney General William Moody to indict those responsible. Moody rebuffed
him and squandered an opportunity to charge those that committed this crime. In August 1904, a
mob lynched Paul Reed and Will Cato in Statesboro, Georgia, and subsequently killed and
randomly targeted other African Americans. When a stockbroker asked Roosevelt to arrest the
lynchers, Attorney General Moody claimed that the federal government had no jurisdiction. 21
In another incident, Attorney General Moody ordered his District Attorney to investigate a
lynching in Chattanooga, Tennessee, but his District Attorney did not want to pursue the case.22
Roosevelt’s administration also had the opportunity to prosecute a police officer under the “color
of law” provision when Attorney General Moody indicted the Sherriff and his deputies for
contempt of court and allowing a mob to lynch Ed Johnson. But the Attorney General dropped
18 Clarence Poe, Atlantic Monthly, February 1904, pages 155-165.
19 Tuskegee Institute and the NAACP's "Thirty Years of Lynching." 20 Fred Gordon to Theodore Roosevelt, Department of Justice R.G. 60 National Archives, Letters Received, August 19, 1904, Letters Sent August 26, 1904 file no. 40036 as cited by Mary Francis Berry, 99 . 21 Department of Justice file no. 40036, R.G. 60 ibid, 98-99. 22 Letter from William H. Moody to Theodore Roosevelt, April 24, 1906. TR Papers LOC. 159
137 the case after the officer enjoyed a horseback ride with President Roosevelt. In 1908, a major race riot broke out in Springfield, Illinois, shocking African Americans nationwide as it took place in Abraham Lincoln’s hometown.23 Roosevelt’s administration did nothing either to stop the riot or address the issues that led to the massacre. Although Roosevelt took a stronger stand against lynching than his predecessors, he missed a significant opportunity to stop lynching.
Republicans controlled all three branches of government, and Roosevelt had the moral and political standing to throw his support behind an anti-lynching bill. 24 But Roosevelt failed to use this political capital and claim the authority presidents already had under the “color of law” and
“conspiracy” provisions.
Roosevelt Creates the FBI
While President Roosevelt's administration failed to address lynching and racial violence, it took a significant step in creating a federal police force that could regulate episodic law and order. Roosevelt called Attorney General Charles Bonaparte to the White House and demanded a full investigation of the recent theft and fraud of open lands. Bonaparte requested the help of
Secret Service agents. For decades, the Justice Department, Postal Service, and the Department of the Interior used the Secret Service to carry out investigations of federal crimes. Members of
Congress became frustrated with this practice and prohibited the administration from using the
Secret Service in this manner. An angry Roosevelt told Congress that this prohibition “only benefit one class of people—and that is the criminal class.” He proclaimed that “only criminals need fear our detectives.” He used his Special Message to claim that “the chief argument of this
23 Ivan Evans, Cultures of violence Book Subtitle: Lynching and Racial Killing in South Africa and the American South, (New York: Manchester University Press, 2009), 180 24 William Ziglar, “The Decline of Lynching in America,” 18. 159
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new prohibition was that Congressmen themselves did not wish to be investigated by the Secret
Service men.”25 Congress held committee hearings and called witnesses to determine whether
Roosevelt had any members of Congress under investigation. Roosevelt backed off his claim, but
the Justice Department eventually indicted and convicted Senator John Mitchell of Oregon along
with other members of Congress for committing land fraud. 26 In the end, Congress passed an
appropriations bill prohibiting the Justice Department’s use of Secret Service agents by nearly
veto-proof margins, causing Roosevelt to sign the legislation.
Roosevelt eventually directed Bonaparte to create an investigative service in the
Department of Justice that “would report to no one except the Attorney General.”27 Attorney
General Bonaparte unilaterally created the Bureau of Investigations (FBI) on July 26, 1908. To circumvent the need for congressional appropriations, he simply reassigned agents from offices
that already had appropriated funds. Roosevelt’s creation of the FBI signaled an impending
expansion of the president’s role in maintaining episodic law and order. Since the beginning of
the republic, the president maintained structural law and order, focusing either on protecting
slavery or protecting African Americans’ civil rights. States controlled episodic law and order
and resented any interference from the federal government. The creation of the FBI initiated the
process for presidents to expand their role in episodic law and order, even as they neglected their
responsibilities to protect African Americans from racial violence.
25 Theodore Roosevelt, Special Message, January 4, 1909, ed Gerhard Peters and John T. Woolley, The American Presidency Project. 26 John F Fox, “The Birth of the Federal Bureau of Investigations,” https://www.fbi.gov/history/history- publications-reports/the-birth-of-the-federal-bureau-of-investigation July 22, 2018 27 Special Agent James G. Findlay to Assistant Director Louis B. Nichols, November 19, 1943, “Early History of the Bureau of Investigation, United States Department of Justice” Federal Bureau of Investigations, Memo. 159
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President Howard Taft and the White Slave Act
Two months into President Taft’s administration, Attorney General George Wickersham gave the FBI official status after securing congressional appropriations.28 Wickersham wanted
the FBI to expand its investigative jurisdiction into areas that previously belonged to the states. 29
Congress granted the Attorney General’s wish when it passed the White Slave Act also known as
the Mann Act. The legislation made it a felony to transport any women, either domestically or
internationally for the purposes of “prostitution, debauchery, or any other immoral purposes.”30
Prior to this law, some states regulated and controlled legal prostitution. However, legal
prostitution incentivized the illegal kidnapping of domestic and foreign women, leading to the
nation’s first sex trafficking problem.31 The federal government’s expansion into the area of
prostitution indicated a willingness to use the resources of the federal government to protect
white women from the sex trade even while it refused to protect African Americans from
lynching.
Given Taft’s unwillingness to address racial violence, white supremacists lynched more
than 239 African Americans. The Committee of Colored Ministers begged President Taft to “use
the powers of your great office to suppress lynching, murder, and other forms of lawlessness.”
Wickersham responded stating, “The protection of life and property is generally a duty devolving
28 John F Fox, “The Birth of the Federal Bureau of Investigations.” 29 Homer Cummings and Carl McFarland, Federal Justice Chapters in the History of Justice and the Federal Executive, (New York: The McMillian Company 1937), 381. 30 “An Act To further regulate interstate and foreign commerce by prohibiting the transportation therein for immoral purposes of women and girls, and for other Purposes” U.S. Statute at Large 61st Cong. II Sess. Ch. 393-395 June 25, 1910, 825. 31 Kenneth O’Reilly, “A New Deal for the FBI: The Roosevelt Administration, Crime Control, and National Security” The Journal of American History, 69, No. 3 (Dec. 1982), 641. 159
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upon state authorities…and the Federal Government can take no action.”32 Wickersham ignored
the authority he had under the “color of law” and “conspiracy” provisions that allowed him to
prosecute individuals for committing this type of violence. In July 1910, white farmers murdered over thirty African American sharecroppers in Slocum, Texas, for protesting the peonage system.
A Republican Party leader named Ernest Lyons wrote to Wickersham and asked the federal government to act, but the Justice Department insisted that it was powerless because the
perpetrators did not violate any federal laws.33 While these perpetrators violated the "conspiracy"
provision, Wickersham's answers reflected the federal government's unwillingness to use this
authority to protect African Americans.
The NAACP Pressures Woodrow Wilson
Taft’s unwillingness to protect African Americans led them to support Democratic
presidential nominee Woodrow Wilson in the 1912 election. Even with their support, President
Wilson refused to denounce lynching or intervene to protect African Americans from racial
violence. W.E.B. Du Bois and the NAACP lobbied Wilson on the lynching issue upon taking
office, and provided him with egregious examples of racial violence, lynching statistics, as well
as a constitutional basis for federal intervention. Whenever the NAACP sent this information to
Wilson, Attorney General Thomas Gregory claimed that the federal government had “absolutely
no jurisdiction over matters of this kind.” The NAACP viewed the administration’s statement as
untrue and hypocritical. When a mob lynched a German citizen in Illinois, the President held a
cabinet meeting and sent FBI special agents into the state to stop similar mob outrages. Du Bois
32 Herbert Aptheker, Documentary History Volume III, 15. 33 Department of Justice, file no. 152961-1, R.G 60, 1910 file no. 152961-2, 1910 as cited Mary Frances Berry, Black Resistance White Law, 19; 107. 159
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asked Attorney General Gregory why the Justice Department could not intervene to protect an
African American from racial mobs but could quickly “punish and stamp out mob violence”
when a German citizen is lynched? 34 The NAACP felt let down by Wilson’s inaction in this instance and his antagonism toward African Americans generally because they supported his
1912 election. Just a month before Wilson’s 1916 reelection, Du Bois sent him a letter
expressing his disappointment:
During the last campaign, believing firmly that the Republican Party and its leaders had systematically betrayed the interests of colored people, many of our members did what they could to turn the colored vote toward you. We received from you a promise of justice and sincere endeavor to forward their interests. We need scarcely to say that you have grievously disappointed us….Lynching is a national evil of which Negroes are the chief victims. It is perhaps the greatest disgrace from which this country suffers, and yet we find you and other men of influence silent in the matter.35
The NAACP did not give up on Wilson, and after his reelection they asked him to use his
second Inaugural Address to denounce the “barbaric system of lynching which prevails in
various parts of this country.”36 Wilson refused, placing his focus on international affairs and the
First World War
America’s entrance into World War I contributed to a dramatic decrease in lynching but
caused significant racial riots in the North. During the previous decade, African Americans
migrated north to escape lynching, and this trend increased when they sought to join the
industrial war effort. Northern whites now had to compete with black labor and responded to a rising black middle class with “fear and violent reprisals.”37 This labor and racial dispute came to
34 W.E.B. Dubois to Attorney General Thomas Gregory, May 1, 1918, Papers of the NAACP, Part 07: The Anti-Lynching Campaign, 1912-1955, Series A: Anti-Lynching Investigative Files, 1912-1953 Group I, Series C, Administrative File: Subject File--Lynching, Mob Violence, and Race Riots—Studies 35 W.E.B. Dubois to Woodrow Wilson, October 10, 1916, The Papers of Woodrow Wilson Digital Edition. Charlottesville: University of Virginia Press, Rotunda, 2017. 36 Moorefield Story to Woodrow Wilson, February 13, 1917, The Papers of Woodrow Wilson 37 Rogers Smith, Civic Ideals Conflicting Visions of Citizenship in U.S. History, (United States of America: Yale University Press, 1997), 372. 159
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a head in 1917 when white East St. Louis steelworkers went on strike. The company’s managers
hired the newly-arriving African Americans, causing several hundred white men to attack and
open fire in black communities. When African Americans retaliated, a larger group of whites
shot and killed African Americans, cut the water hoses, and burned down their houses. Over 100
African Americans lost their lives. Representative Leonidas Dyer wrote to Wilson and urged him to bring this matter to the attention of the Attorney General “because he feared the consequences of inaction.”38 A local East St. Louis businessman asked Wilson to intervene so his business would not burn down. Although the Justice Department’s staff attorneys laid out a justification for intervention, President Wilson and Attorney General Gregory refused to stop the violence.39
Wilson continued to ignore the egregious acts of violence carried out against African
Americans, and it grew worse after World War I ended. As African Americans returned from the
War, they showed a new sense of pride and an unwillingness to accept second-class status.
Whites reacted to this “uppity” act with a higher level of barbarism toward blacks, including
soldiers. Even when soldiers wore their uniform, they faced shootings, beatings, and burnings at
the stake.40 Private William Little returned home from the war wearing his military uniform and received a note threatening to kill him if he insisted on wearing “khaki.” Someone followed through on the threat and beat Private Little to death on the outskirts of town.41 No one from the
Justice Department investigated the crime.
38 Leonidas Carstarphen Dyer to Woodrow Wilson, July 20, 1917, The Papers of Woodrow Wilson 39 Department of Justice, Glasser File box 14 East St. Louis, October 1917; Letters received, file no. 186835-55, R.G. 60, December 1917 as cited Mary Frances Berry, 109. 40 Vincent P. Mikkelsen, “Fighting for Sergeant Caldwell: the NAACP Campaign against "Legal" Lynching after World War I,” The Journal of African American History, Vol. 94, No. 4, Special Issue (2009), 464. 41 Molefi, Asante, Erasing Racism The Survival of the American Nation, (Amherst, Prometheus Books, 2009), 100. 159
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This level of violence reflected a significant effort to reassert white supremacy and put
African Americans back into second-class status. 42 In 1917, African American lynchings had
dropped to thirty-six, its lowest level since 1882. As the war ended, African American lynchings
increased to sixty, and some were more brutal than others. A racial mob hung a black woman
named Mary Turner upside down, doused her with gasoline, cut her baby out of her womb, and
stomped her baby to death while she was burned alive. This brutal execution resembled the 1916
lynching of Jesse Washington, a mentally disabled man. A mob dragged him out of the
courtroom, viciously stabbed him, and cut off his fingers, ears, and genitals before burning him
to death.43 The police chief and mayor watched this brutal execution, but did not arrest or
prosecute anyone. NAACP Executive Secretary John Shillady told Wilson that America needed
to hear from him on the lynching issue as the level of cruelty increased with each murder.44
Wilson finally denounced lynching and called on “the governors of all the states, the law officers of every community, and…the men and women of every community” to end the practice of lynching.45 While it likely heartened the NAACP to hear Wilson denounce lynching, his call on
local leaders to end the practice reinforced the idea that he would not use the executive branch to
maintain law and order on behalf of African Americans.46
42 Michael Belknap, Federal Law and Southern Order, (Athens: The University of Georgia Press, 1995), 1-8. 43 Megan Francis, Civil Rights and the Making of the Modern American State, (New York: Cambridge University Press, 2014) 46. 44 John Shillady to Woodrow Wilson, July 25, 1918, The Papers of Woodrow Wilson 45 Woodrow Wilson, “A Statement to the American People, July 16, 1918, The Papers of Woodrow Wilson . 46 Wilson's statement was a big boost for the NAACP's attempts to sway public opinion on the evils of lynching. The NAACP view this statement as a major win, and they raised money off the statement saying—"The NAACP appeals for contributions to its anti-lynching fund. To back President Wilson's crusade against lynching." President Wilson did not have a crusade against lynching, but his statement allowed the NAACP to claim that he did. Papers of the NAACP, Part 07: The Anti-Lynching Campaign, 1912-1955, Series A: Anti-Lynching Investigative Files, 1912-1953.
159
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The NAACP had tried unsuccessfully for decades to get governors to stop the lynching.
When NAACP Secretary May Childs Nerney sent the Governor of West Virginia a letter asking
him to investigate a lynching of an African American man, he replied that he attempted to
intervene by sending the militia but it was too late, adding, "I shall do everything within my
power to see that the guilty parties are punished." The governor boasted that he was as much
opposed to “lynching as your association (NAACP) can possibly be and during my term of office
have prevented four lynchings on one occasion appearing myself with a company of militia.”47
The NAACP asked Governor Hugh M. Dorsey of Georgia for help in ending lynching, citing the
135 African Americans lynched in his state. Governor Dorsey did not reply. Some Governors
attempted to address the lynching issue on a case by case basis. Governor Stanley of Kentucky
used his body to protect a “Negro prisoner” from lynching. Governor Manning of South Carolina
arrested seventeen individuals under a $100,000 bond for lynching an African American victim.
Governor Rye of Tennessee offered a $500 award to apprehend lynching suspects that burned an
African American at the stake. 48 However, most Governors continued to make excuses or cite
their limitations in their attempts to stop the mob violence. Mississippi Governor Theodore Bilbo
said: "Under our system of laws in Mississippi, the Governor would have no jurisdiction in this
matter.”49 Governor Rye of Tennessee said: "I could not anticipate that local officers, whose
47 Papers of the NAACP, Part 07: The Anti-Lynching Campaign, 1912-1955, Series A: Anti-Lynching Investigative Files, 1912-1953Group I, Series C, Administrative File: Subject File--Lynching--West Virginia library of Congress. Copyright 2013, NAACP https://congressional.proquest.com/histvault?q=001527-019-0599. 48 John Shillady to Attorney General Gregory Papers of the NAACP, May 10, 1918 Part 07: The Anti- Lynching Campaign, 1912-1955, Series A: Anti-Lynching Investigative Files, 1912-1953 Group I, Series C, Administrative File: Subject File--Lynching, Mob Violence, and Race Riots—Studies. 49 John Shillady to Attorney General Gregory Papers of the NAACP, May 10, 1918 Part 07: The Anti- Lynching Campaign, 1912-1955, Series A: Anti-Lynching Investigative Files, 1912-1953 Group I, Series C, Administrative File: Subject File--Lynching, Mob Violence, and Race Riots—Studies John Shillady to Attorney General Gregory Papers of the NAACP, May 10, 1918 Part 07: The Anti-Lynching Campaign, 1912-1955, Series A: Anti-Lynching Investigative Files, 1912-1953 Group I, Series C, Administrative File: Subject File--Lynching, Mob Violence, and Race Riots; John Shillady to Attorney General Gregory 159
145 duty it is to take custody of prisoners would fail to accord protection, nor could any action upon my part be taken without being requested so to do by the local authorities or court officers."
The NAACP did not believe that states could protect African Americans from lynching.
John Shillady noted that “nineteen Negroes have been lynched” since President Wilson called on state and local governments to end the practice.50 The NAACP believed the “occasion demanded action and not rhetoric,” and the kind of action that required was the “actual apprehension” of lynching suspects under the “conspiracy” “color of law” provisions.51 The
NAACP’s frustration reflected the grim reality that the lynchings of African Americans continued to increase immediately after the war in 1919 (See Figure 6-1). 52
Papers of the NAACP, May 10, 1918 Part 07: The Anti-Lynching Campaign, 1912-1955, Series A: Anti- Lynching Investigative Files, 1912-1953 Group I, Series C, Administrative File: Subject File--Lynching, Mob Violence, and Race Riots—Studies https://congressional.proquest.com/histvault?q=001527-020- 0138. 50 John Shillady to Governor Theodore Bilbo. Papers of the NAACP, Part 07: The Anti-Lynching Campaign, 1912-1955, Series A: Anti-Lynching Investigative Files, 1912-1953. 51 John Shillady to Attorney General Gregory Papers of the NAACP, May 10, 1918 Part 07: The Anti- Lynching Campaign, 1912-1955, Series A: Anti-Lynching Investigative Files, 1912-1953 Group I, Series C, Administrative File: Subject File--Lynching, Mob Violence, and Race Riots—Studies. 52 The lynching statistics are from the Newspapers articles, Tuskegee Institute and the NAACP's "Thirty Years of Lynching." 159
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Figure 6-1 Lynchings During Woodrow Wilson's Administration 80
70
60
50
40
30
Number of Lynchings of Number 20
10
0 1913 1914 1915 1916 1917 1918 1919 1920 Year
White Black
Source: The lynching statistics are from the Tuskegee Institute and the NAACP's "Thirty Years of Lynching."
159
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Wilson’s Expansion of Episodic Law and Order
While Wilson refused to maintain structural law and order and protect African Americans
from racial violence, both Congress and the public expected the President to address issues
related to alcohol, gambling, drug use, and prostitution. Congress addressed gambling with the
1890 Lottery Act which allowed the Justice Department to prosecute those who used the mail to carry out gambling schemes.53 They also addressed prostitution with the 1910 White Slave Act
that empowered the Justice Department to stop sex trafficking and police immigration.54 Under
Wilson, Congress passed a series of laws that contributed to the expansion of the president’s
responsibility to maintain episodic law and order. In 1914, for example, Congress passed the
Harrison Narcotics Tax Act to deal with the distribution of opiates and the use of cocaine. The
Act forced physicians and companies to register the use and distribution of their drugs.55 Up to
this point, the distribution of cocaine was unregulated, and even Sears sent their customers a
catalog that offered cocaine and a syringe for $1.50.56 The passage of this Act did not
fundamentally change the federal government’s relationship with the states because they passed
it under their internal revenue laws. In the two decades leading to passage of this Act, nearly 46
percent of federal indictments came under violations of internal revenue laws.57 Congress also
passed the Dyer Act, which made taking a stolen automobile over state lines a federal crime.58
53 Statutes at Large “An act to amend certain sections of the Revised Statutes relating to lotteries, and for other purposes” Sept. 19, 1890, 51st Cong. Sess I. Ch. 908, 465. 54 Statutes at Large “An Act To further regulate interstate and foreign commerce by prohibiting the transportation therein for immoral purposes of women and girls, and for other purposes" June 25, 1910, 61st Cong. Sess. II Ch. 394, 825. 55 U.S. Statutes at Large H.R. 6282 63 Congress. Sess. III Ch. 1 December 7, 1914; Arthur C. Millspaugh, Crime Control by the National Government, (Washington, DC: Brookings Institute, 1937), 81. 56 Nicole Horning, Drug Abuse: Inside American Epidemic, (New York: Greenhaven Publishing, 2019), 13. 57 Annual Report of the Attorney General, 1878-1890 58 U.S. Statutes at Large, 66th Congress. Sess I. Ch. 88-89, An Act To punish the transportation of stolen motor vehicles in Interstate or foreign commerce 159
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This legislation gave the FBI the power to investigate stolen property, an issue previously
handled exclusively by the states. Congress also passed, over Wilson’s veto, the Eighteenth
Amendment and Volstead Act, which prohibited the manufacturing and distribution of alcohol.
Even with this expansion over law enforcement, President Wilson continued to insist that he
could not protect African Americans from lynching and racial violence.
Harding and Coolidge’s Tepid Response to Lynching
African American support for Woodrow Wilson and the Democratic Party did not lead to
an end to lynching, and they looked forward to the administration of Republican President
Warren G Harding. The NAACP believed that they only needed to educate Harding on the
issues, and he would support their anti-lynching crusade. They met Harding several times as a presidential candidate and tried to make him take an anti-lynching pledge.59 Harding refused, but
during his acceptance speech at the Republican Convention he said: “I believe the Federal
Government should stamp out lynching and remove that stain from the fair name of America.”60
The NAACP met Harding several times after his election and barraged his office with newspaper
clippings detailing lynchings and showing southern editorial pages in favor of federal
intervention.61 Harding responded by using his first Annual Message to ask Congress to “wipe
out the stain of barbaric lynching.”62 But just like his predecessors, Harding's statement failed to
stop the racial violence carried out against African Americans. In Tulsa, Oklahoma, African
Americans built a “Black Wall Street “and many prominent African Americans—including
59 Meghan Francis, Civil Rights, 82-83. 60 Warren G. Harding: "Address Accepting the Republican Presidential Nomination," June 12, 1920, The American Presidency Project. ed. Gerhard Peters and John T. Woolley. 61 Meghan Francis, Civil Rights, 85-86. 62 Warren G. Harding: "Address to a Joint Session of Congress on Urgent National Problems," April 12, 1921, The American Presidency Project ed. Gerhard Peters and John T. Woolley, 159
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landowners, doctors, business owners, and lawyers--lived there. On May 31, 1921, a mob burned
over thirty-five blocks of this black community, and police arrested over 6,000 African
Americans and firebombed their homes, claiming that the black residents were rioting.63
Harding did nothing to respond, and the Justice Department failed to investigate the incident under the "conspiracy" or "color of law" provisions.
After Harding’s sudden death in 1923, President Calvin Coolidge continued to denounce
lynching even while refusing to protect African Americans. Coolidge told Congress in his first
Annual Message that it had a duty to protect African Americans and should “exercise all its
powers of prevention and punishment against the hideous crime of lynching.”64 While Coolidge
placed the burden of protecting African Americans on Congress, when it came to other issues
such as Prohibition, Coolidge proclaimed that “it is the duty of the Executive to enforce.”65 He
informed Congress that the “Federal enforcement bureau is making every effort to prevent
violations, and the Federal Government is doing and will continue to do all it can in this
direction.”66 The Prohibition amendment and the Volstead Act increased the amount of pure police work for the federal government, causing them to patrol, detect, issue search and seizures, and arrest people.67
63 Oklahoma Commission (February 28, 2001), "Final Report" (PDF), Oklahoma Commission to Study the Tulsa Race Riot of 1921. 64 Calvin Coolidge: "First Annual Message," December 6, 1923. The American Presidency Project ed Gerhard Peters and John T. Woolley; Coolidge: "Second Annual Message," December 3, 1924, The American Presidency Project ed Gerhard Peters and John T. Woolley. 65 Calvin Coolidge: "Address Accepting the Republican Presidential Nomination," August 14, 1924, The American Presidency Project ed. Gerhard Peters and John T. Woolley. 66 Department of Justice, file no. 158260, R.G. 60—Lynching, April 30 as cited by Mary Frances Berry, 126. 67 Millspaugh, Crime Control by the National Government, 70.
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To enforce Prohibition laws, the Bureau of Internal Revenue created a division called the
Prohibition Unit, which tasked its special agents with enforcment. During Coolidge’s second
term, the Prohibition Unit became the Bureau of Prohibition (BOP) led by the first woman U.S.
Attorney Mabel Walker Willebrandt. Willebrandt discovered soon after taking office that
Treasury Department officials planned to sell liquor permits in exchange for political donations
to the Republican campaign fund. This type of corruption epitomized the lack of respect for the
Prohibition laws. She also found that The Bureau of Prohibition had unqualified, undisciplined
and highly corrupt agents. When they implemented a civil service exam for those already
working at the Bureau, only 46 percent of them passed, and they had to demote, dismiss, or
transfer ninety-one supervisors.68 Willebrandt also found it difficult to enforce the law because
of local resistance. After Prohibition agents made an arrest, criminals often could bribe their way
out of jail. In other instances, they worked with both the police and local sheriff to evade the law.
The Assistant U.S. Attorney General announced that "local authorities were not doing their full
duty in the matters of law enforcement, and that as a result, the great masses of the people were
clamoring for the Federal Government to do that which the State Governments had failed to do,
and more."69 By the end of Coolidge's term, federal law enforcement, the Bureau of Prohibition, and the Justice Department had been wholly disgraced. 70 Prohibition failed in part because of resistance to the law and inadequate federal policing. Instead of retreating from episodic law and order, President Herbert Hoover decided to improve and professionalize federal law enforcement.
68 Ibid., 16-17. 69 Jeffrey Adler, Less Crime, "More Punishment: Violence, Race, and Criminal Justice in Early Twentieth-Century America," The Journal of American History; Edgar Robinson, Bornet, Eugene, et al.; Herbert Hoover, (Stanford: Hoover Institution Press, 1975), 83. 70 Ibid., 13, 20-22
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Herbert Hoover’s Crusade against Organized Crime
When President Hoover took office, he had to confront the rise of organized crime and
the lack of professionalism within federal law enforcement. As a presidential candidate, he
promised efficient and vigorous enforcement of Prohibition and all other violations of federal
law.71 Once elected, he made history by becoming the first president to discuss the issue of
crime during an inauguration speech. “Disobedience of the law,” according to Hoover,
represented the gravest danger to the nation. Hoover also made history when he created the first
presidential commission on crime known as the Wickersham Commission.72 The Commission
wanted to improve the enforcement of Prohibition, but Hoover also wanted recommendartions
on how to reorganize federal law enforcement, reduce the more than 9,000 murders that occurred
each year, and stop the violations of other federal laws like the Narcotics Act.73 According to
the Wickersham Commission, prohibition represented “the first attempt in our history to extend
directly by constitutional provision the police control of the federal government to the personal
habits and conduct of the individual.”74 They believed the Bureau of Prohibition failed because
it “exacerbated fears of a centralized government, “and that failure led Hoover to dismantle the
Bureau of Prohibition by transferring it to the Justice Department. 75
71 Edgar Robinson, Bornet, Eugene, 84. 72 Herbert Hoover: "Inaugural Address.," March 4, 1929. The American Presidency Project ed. Gerhard Peters and John T. Woolley. 73 Herbert Hoover: "Address to the Associated Press: Law Enforcement and Respect for the Law.," April 22, 1929. The American Presidency Project. ed. Gerhard Peters and John T. Woolley. Edgar Robinson, Bornet, Eugene, 87-89. 74 National Commission on Law Observance and Enforcement, “Report on Enforcement of Prohibition,” January 7, 1931, Washington: Department of Justice Library https://www.ncjrs.gov/pdffiles1/Digitization/44540NCJRS.pdf Millspaugh, Crime Control by the National Government, 71. 75 Claire Potter, War on Crime, 27.
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Herbert Hoover also had an interest in stopping organized crime and directed all federal agencies to focus on mob leader Al Capone. The Chicago Tribune estimated that Capone's gross income for 215 gambling operations made about $36 million a day while making almost $51 million a week from beer. He made about $26 million from bootlegging and about $90 million a week from bookmaking. Capone's organization made billions of dollars a year according to these estimates from the Chicago Tribune and Daily News.76 Hoover told Attorney General Mitchell to create a task force to stop Capone. Walter Hope, Assistant Secretary of the Treasury, ordered an audit of Capone's tax records to determine if he had failed to pay taxes. The Task Force provided
Hoover with regular updates on the case. When the Great Depression hit, President Hoover had limited funds to continue the investigation and he solicited and received money from several private Chicago organizations to help.
Hoover’s efforts led to a twenty-two-count indictment of Al Capone and an eleven-year prison sentence.77 Hoover's effort to combat crime by pursuing Capone represents a key moment in the evolution of the president's power to maintain episodic law and order. In prior decades, presidents inched their way toward directing the actions of law enforcement. Theodore Roosevelt created the FBI. William Howard Taft worked to have the FBI funded and signed legislation that expanded its jurisdiction into sex trafficking. Woodrow Wilson signed legislation empowering the FBI to investigate automobile thefts and narcotics distribution. Warren Harding and Calvin
Coolidge reorganized and created a 1,5000-person unit to investigate prohibition violations.
76 Burke Marshall Personal Papers. Assistant Attorney General Files, 1958-1965 (bulk 1961-1964). Fund for the Republic, 1958-1959. Goe, Robert: “Crime and the Corporation,” 21 December 1958, 12 77 James Calder, The Origins and Development of Federal Crime Control Policy: Herbert Hoover’s Initiatives, (Praeger: New York, 1993), 129-150. 159
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Herbert Hoover, building on all these efforts, used his imagination and internal revenue laws to take down one of the most powerful gangsters in the nation's history.
Hoover did not stop with organized crime. He also took a significant step toward addressing juvenile delinquency by signing a bill that authorized the transfer of juvenile delinquents from the federal system of criminal justice to juvenile courts in their home communities. He took this step based on the recommendation of the Wickersham
Commission. Hoover’s actions on juvenile delinquency and organized crime made it clear that the president had become the nation’s chief law enforcement officer. However, Hoover, like his predecessors, failed to show this level of initiative to protect African Americans from lynching and other forms of racial violence.78
When the NAACP and Massachusetts Representative George Tinkham demanded that the Wickersham Commission and Attorney General Mitchell investigate the lynching of African
Americans, the Attorney General claimed that he lacked the statutory authority to protect African
Americans. 79 The press even pushed on Hoover to use the Commission to investigate lynching.
The editorial page of the Nation argued, “Prohibition violations are a small matter compared to the wholesale, persistent, unashamed, and official violation of the Constitutional provisions protecting the Negro which are current throughout the South.” The Nation concluded that “if
President Hoover's Commission really wishes to get at the root of American’s contempt for the
78 U.S. Statutes at Large, 72nd Congress Sess I. CHS. 243, 244 June 11, 1932; Herbert Hoover, Statement on Signing a Bill Authorizing the Transfer of Juvenile Delinquents to Local Jurisdictions, June 11, 1932 ed, Gerhard Peters and John T. Woolley, The American Presidency Project 79 New York Herald Tribune May 6, 1929, Papers of the NAACP, Part 11: Special Subject Files, 1912- 1939, Series B; The New York World, June 24, 1929, Papers of the NAACP, Part 11: Special Subject Files, 1912-1939, Series B. 159
154 law,” it would consider the NAACP’s request to investigate lynching.80 Hoover ignored the pressure from the NAACP, Congressman Tinkham, and the press.
Fortunately for African Americans, lynching decreased during Hoover’s time in office declining from 50 people a year in the decade from 1915 to 1925, to 16 people a year from 1926 to 1936 (See Figure 6-2). Since there was no federal intervention, this decrease may be attributed to the efforts of the NAACP and other civil rights groups to sway public opinion. This decrease, of course, was nothing to celebrate. The Deep South remained a perilous place for African
Americans until 1945 as they typically made up about 90 percent of the lynching totals in those states (See Figure 6-3).
80 The Nation, August 7, 1929, Papers of the NAACP, Part 11: Special Subject Files, 1912-1939, Series B. 159
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Figure 6-2 Lynching by Decade, 1882-1951 1200 1132
1000
893 800 820
701
600
503
400 334
200 159
61 53 49 0 21 4 1882- 1892 1893-1903 1904-1914 1915-1925 1926-1936 1937-1951
White Black
Source: The lynching statistics are from the Tuskegee Institute and the NAACP's "Thirty Years of Lynching."
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Figure 6-3
Source: The lynching statistics are from the Tuskegee Institute and the NAACP's "Thirty Years of Lynching."
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Conclusion
By the end of Herbert Hoover’s administration, presidents focused almost exclusively on episodic law and order while retreating from protecting African Americans under the
"conspiracy" or the "color of law "provisions. Amidst this inaction by the federal government, mobs lynched over 3,000 African Americans in some of the most brutal and inhumane ways.
Sometimes the mobs burned them alive, and other times they dragged them by their feet behind their cars. In still other instances, mobs beat them to death or took them on stage at theaters and allowed the audience to shoot at them. These brutal incidents led the NAACP to petition the
Justice Department and the president to prosecute those responsible for these atrocities. Every president, from Theodore Roosevelt to Herbert Hoover, refused to intervene to protect African
Americans, ignoring the authority that Congress gave President Grant under the Fourteenth
Amendment and the “color of law” and “conspiracy” provisions.
While Presidents claimed that they had no power to stop lynching and racial violence, they expanded and reorganized their law enforcement bureaucracy to investigate and prosecute alcohol distribution, automobile thefts, prostitution, and the theft of public lands. Theodore
Roosevelt unilaterally created the FBI, and William Howard Taft used it to investigate sex trafficking. Woodrow Wilson expanded the federal government's authority over drug distribution and automobile thefts. Warren Harding, Calvin Coolidge and Herbert Hoover created and expanded the Bureau of Prohibition to investigate violations of the new alcohol laws. All their efforts culminated with Hoover creating professional standards for federal law enforcement using a law enforcement commission, addressing juvenile delinquency, and personally overseeing the indictment and prosecution of Al Capone.
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The early 20th century provides some critical answers to the development of the law and order presidency. In the antebellum era, presidents maintained structural law and order using the
Attorney General and the U.S. military to recover fugitive slaves. In the Reconstruction era,
Congress empowered the president to use those same executive branch institutions to protect
African Americans from racial violence. During this period, structural law and order changed as presidents now had the authority and power to protect the rights of African Americans under the
Thirteenth, Fourteenth and Fifteenth Amendments. In the post-Reconstruction era, presidents retreated from maintaining structural law and order and increased their level of responsibility for episodic law and order. In this capacity, they reorganized the executive branch, created two major law enforcement entities, and personally oversaw prosecutions. These developments meant that presidents had gained and adopted additional law enforcement powers. The president is not the nation's sheriff at this point, but he was getting close. Unfortunately for African
Americans, this new power did not lead to a stop in either lynching or racial violence. While these presidents refused to stop lynching and left thousands of African Americans to the mercy of violent mobs, this period reflects a critical juncture for the president’s expanding power over law and order in America.
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Chapter 7 : Law and Order and the Civil Rights Era
Presidents from Franklin D. Roosevelt to John F. Kennedy continued Hoover’s practice
of focusing on organized crime and juvenile delinquency while ignoring their power to protect
African Americans from racial violence under the "conspiracy" and "color of law" provisions.
Roosevelt expanded the president's authority over episodic law and order even further than
Herbert Hoover. Under his guidance, the FBI and the Justice Department expanded their fight
against organized crime, bank robberies, firearm sales, and kidnapping. At the same time,
Roosevelt initially refused to use these institutions to protect African Americans from racial
violence. However, African American groups like the NAACP continued to pressure Roosevelt
to maintain structural law and order using the “color of law” and “conspiracy” provisions enacted during Reconstruction. Roosevelt responded to this pressure, created the Civil Rights
Division, and tasked it with protecting African Americans from racial violence.
Dwight D. Eisenhower and John F. Kennedy followed Roosevelt’s pattern of initially refusing to use their executive branch institutions to protect African Americans while also using their authority to maintain episodic law and order. However, the constant pressure from civil rights groups and the violent reaction from white supremacists forced them to intervene and maintain structural law and order on behalf of African Americans.
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President Roosevelt Lays the Foundation for a New “Law and Order”
Franklin D. Roosevelt continued Herbert Hoover's custom of focusing on organized
crime while ignoring issues like lynching, police brutality, and the infringement of African
Americans’ civil rights. Attorney General Homer Cummings called for a National Conference to establish nationwide standards for fighting organized crime. Although lynching and police brutality violated the U.S. Constitution and the “color of law” and “conspiracy” provisions,
Cummings refused to include lynching in the conference program. The issue of lynching only came up when President Roosevelt mentioned it in passing during his opening remarks. 1
After the Conference, Cummings proposed and Congress quickly approved six proposals to combat organized crime. These included a law making it a federal crime to kill a federal official, an anti-racketeering act, expanding the Lindbergh Kidnapping Act, and making it a
federal offense to leave a state to avoid prosecution for murder, kidnapping, burglary, robbery,
mayhem, rape, assault with a dangerous weapon, and extortion accompanied by threats of
violence.2 Congress also passed an amendment to the federal bank robbery statute, instituted
federal taxes on firearms sales and gave the Justice Department jurisdiction over all stolen
1 Papers of the NAACP, Part 07: The Anti- Lynching Campaign, 1912-1955, Series B: Anti- Lynching Legislative and Publicity Files, 1916-1955; Franklin D. Roosevelt: "Address to the Conference on Crime.," December 10, 1934, The American Presidency Project ed., Gerhard Peters and John T. Woolley, 2 Ibid., Ch. 302. May 18, 1934 “An Act Making it unlawful for any person to flee from one State to another for the purpose of avoiding prosecution or the giving of testimony in certain cases;” Statutes at Large, 73rd Cong. SESS. II. Ch. 299. May 18, 1934 “An Act To provide punishment for killing or assaulting Federal officers; Ibid., Ch. 300 and 301. May 18, 1934 “ An Act to Applying the Powers of the Federal Government, under the commerce clause of the Constitution, to extortion by means of telephone, telegraph, radio, oral message, or otherwise;" " An Act To amend the Act forbidding the transportation of kidnaped persons in interstate."
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property valued over $5,000.3 The bank robbery law led to an 80 percent decrease in daylight
bank robberies from 1933 to 1937.4 Roosevelt also signed legislation that provided greater
flexibility for handling juvenile delinquents, and he framed his New Deal program as a means to
rescue youth offenders from social conditions that caused them to commit crimes.5
Congress also gave the FBI the official power to carry guns and arrest individuals for
violations of federal law—an authority they did not have previously.6 This legislation was
important since criminal syndicates had the upper hand over the FBI and shot and killed two FBI
special agents just a year prior. This legislation elevated the FBI to the "leading surveillance and
crime-fighting force in the nation.”7 Roosevelt did not simply want to expand the authority of the
federal government to fight crime. He wanted the public to accept this authority as a legitimate
and critical part of the federal government’s responsibility. He allowed the FBI to launch all out-
media campaigns to “influence the public's supposedly romanticized view of the Depression era's flamboyant criminals (whose deeds were sensationalized by tabloid publicity).”8 The FBI used
the media to highlight and emphasize its work against crime leaders, bandits, and kidnappers.
3 Ibid., Ch. 304. May 18, 1934 “An Act To provide punishment for certain offenses committed against banks organized or operating under laws of the United States or any member of the Federal Reserve System; Ibid., Ch. 595. June 18, 1934 “An Act To empower certain members of the Division of Investigation of the Department of Justice to make arrest in Certain Case;” Ibid., Ch. 333. May 22, 1934 “An Act To extend the provisions of the National Motor Vehicle Theft Act to other stolen Property;” Kenneth O’Reilly, “A New Deal for the FBI: The Roosevelt Administration, Crime Control, and National Security” The Journal of American History, 69, No. 3 (Dec. 1982), 643; Ibid., Ch. 757. June 18, 1934 "An Act To provide for the taxation of manufacturers, importers, and dealers in certain firearms and machine guns, to tax the sale or other disposal of such weapons and to restrict importation and regulate interstate transportation thereof; Ibid., Ch. 595. June 18, 1934 “An Act To empower certain members of the Division of Investigation of the Department of Justice to make arrest in Certain Case." 4 Franklin D. Roosevelt, Address at the National Parole Conference, White House, Washington, D.C, April 17, 1939, ed Gerhard Peters and John T. Woolley, The American Presidency Project 5 Ibid., 6 Ibid., Ch. 595. June 18, 1934 “An Act To empower certain members of the Division of Investigation of the Department of Justice to make arrest in Certain Case." 7 Claire Potter, War on Crime, Bandits, G-Men, 2. 8 Kenneth O’Reilly, “A New Deal for the FBI: 639.
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While expanding his administration’s power over episodic law and order, President
Roosevelt’s Justice Department initially refused to prosecute anyone (including police officers)
for committing racial violence against African Americans. In August 1933, the NAACP asked
the Justice Department to use the “color of law” provision to investigate the lynching of three
African American men that the Tuscaloosa police had in their custody.9 Cummings denied the request and decided not to file federal charges. The NAACP tried to get the Justice Department to prosecute violent mobs under the updated Lindbergh kidnapping law which allowed the FBI to investigate the case on the presumption that the mob transported the kidnapped victim across
state lines. In October, a mob kidnapped an African American Georgia resident named James
Curtis, took him over state lines, and attracted hundreds of people through print advertisements to watch his lynching. The NAACP pressed the Justice Department to open an investigation of this blatant violation of Curtis’s civil rights and the kidnapping law. Justice officials told the
NAACP that the Curtis kidnapping belonged exclusively to “the authorities of the State of
Georgia.” Justice Department officials eventually released a statement emphasizing that the
kidnapping law does not include the protection of African American lynching victims. 10
Roosevelt’s reluctance to prosecute lynching suspects gradually changed under the
constant pressure from the NAACP and Eleanor Roosevelt. 11 Roosevelt told NAACP officials
that he wanted them to write an anti-lynching bill in conjunction with the Attorney General and proposed giving either Congress or the Justice Department the power to investigate every
9 Papers of the NAACP, Part 07: The Anti-Lynching Campaign, 1912-1955, Series A: Anti-Lynching Investigative Files, 1912-1953 Group I, Series C, Administrative File: Subject File--Lynching--Alabama 10 Papers of the NAACP, Part 07: The Anti- Lynching Campaign, 1912-1955, Series B: Anti- Lynching Legislative and Publicity Files, 1916-1955. 11 John Eliff, Justice Department, The United States Department of Justice and Individual Rights, (New York: Garland Publishing, 1987), 69-
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lynching case.12 Roosevelt also created the Justice Department’s Civil Liberties Unit, known
today as the Civil Rights Division, to provide “aggressive protection” of the rights of “free
people.”13 Roosevelt did this without an act from Congress and tasked the division with
directing, supervising, and prosecuting violations of the Thirteenth, Fourteenth, and Fifteenth
Amendments. 14 The Civil Rights Division prepared a memo stating its intention to protect
African Americans using the two provisions Ulysses S. Grant used during Reconstruction to
protect the newly freed slaves from violence—Sections 241 “ conspiracy” and 242 “color of
law.”15 Congress created these provisions during Reconstruction based on the authority
Presidents Fillmore, Pierce, and Buchanan received under the Fugitive Slave Act of 1850. 16
Therefore, President Roosevelt’s 1936 plan to protect African Americans from lynching and
police brutality derived from the authority presidents received in 1850 to recover fugitive slaves.
For several generations, African American groups insisted that presidents had this authority to
protect them but simply lacked political courage. Franklin Roosevelt took the first step to
provide that protection in the modern era, institutionalized structural law and order, and told
12 Ibid., 69-71. 13 William Berman, The Politics of Civil Rights in the Truman Administration, (Columbus: Ohio State University Press, 1970), 5. 14 The Civil Rights Division was also created in response to pressure from Labor Groups who were being targeted by police officers in coal mining districts whenever they petitioned or went on strike. Roosevelt's Justice Department saw a parallel between the issues African Americans were facing regarding state- sanctioned violence and those coal miners looking for higher wages. While the Civil Rights Division prosecuted far more racial violence cases than labor cases, they did indict people in those labor cases under the “color of law” and “conspiracy” provisions. 15 Robert Carr, Federal Protection of Civil Rights: Quest for a Sword, (New York: Cornell University Press, 1947), 29-34. 16 An Act to Enforce the Right of Citizens of the United States to Vote in the Several States of this Union and for Other Purposes U.S. Statutes at Large Vol. XVI, 41st Cong. Sess. II Ch. 14, 140-146, May 30, 1870, USC 18 241; An Act to protect all Persons in the United States in their Civil April 9, 1866, Statutes at Large, Thirty-Ninth Congress. Sess. I. CH. XXXI. 1866.
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Justice Department officials to “make an automatic investigation in all cases of Negro deaths
where the suspicion of lynching is present.”17
The Justice Department followed this order and tried to prosecute police officers for brutality and individuals for lynching African Americans. They received their first opportunity to indict a police officer under the “color of law” provision when an Atlanta officer named W.F
Sutherland brutally extracted a confession from an African American man named Quintar South.
Sutherland burned South with an electric iron and beat him until he confessed. A state jury acquitted Sutherland on all charges, causing the Department of Justice to indict him for violating the “color of law” provision. However, the U.S. Attorney could not secure a conviction due to jury nullification, and had to drop the case. The Justice Department also indicted Sherriff
Howard Culp of Crittenden County, Arkansas, along with his deputies and prison guards, for
falsely arresting and extorting African American citizens. William Berg, Assistant Attorney
General for the Criminal Division, claimed that Culp “arrested numerous ignorant and indigent people…intimidated them by severe beatings and then summarily tried and fined them.”18 The
Justice Department convicted Culp under the “color of law” provision, making it one of the only
successful police brutality convictions of the Roosevelt era.
The Justice Department had less success in prosecuting the police officers responsible for
the lynching of Cleo Wright in Sikeston, Missouri. Local police arrested and accused Wright of
assaulting a white woman and a police officer. A mob broke into the prison, kidnapped Wright,
dragged him through town tied to a back of a car, and set him on fire in the black section of
town. Attorney General Francis Biddle and Assistant Attorney General Wendell Berge asked the
17 John Eliff, The United States Department of Justice, 148. 18 Ibid., 124-149
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FBI to investigate the matter on February 13, 1942, after the state grand juries refused to indict
anyone for the incident.19 However, the Justice Department could not prove that the police took part in the lynching and dropped the case. In the same year, a mob lynched Howard Walsh after
a jury convicted him of killing a white man. The FBI reported to U.S Attorney Toxy Hall that
the state jailer and police facilitated this lynching. Attorney General Biddle reported to Roosevelt
that the jailer denied Wash his Fourteenth Amendment rights.20 The Justice Department indicted
five individuals for the crime under the “conspiracy” and “color of law” provision, but the jury
acquitted the defendants. The Justice Department continued to pursue police brutality cases in
Arkansas, Alabama, Georgia, and Florida, but most of them either resulted in small fines and prison sentences or outright acquittal.21
In 1943, the Department of Justice secured a conviction of Sherriff Mack Claude Screws
and his deputies because they killed an African American named Robert Hall with a tire iron.
The judge sentenced them to three years in jail, and they quickly appealed the conviction all the
way up to the Supreme Court. 22 Whenever police officers challenged the Justice Department’s
power to prosecute them under the “color of law” provision, they argued that the federal
government could not indict them on these “two laws” since they were “seventy years old” and
“rusting on the federal shelf.”23 The Supreme Court affirmed the Department of Justice’s right to prosecute Sherriff Screws under “the color of law” provision, but it would have to prove that he willfully intended to deprive Robert Hall of his Fourteenth Amendment right to due process. The
19 Victor Rotem, The Federal Civil Right not to be Lynched, 28 Wash. U.L.Q (1943) 57 20 Christopher Waldrep, “National Policing, Lynching, and Constitutional Change,” Journal of Southern History, (2008) 589-626. 21 John Eliff, The United States Department of Justice, 160. 22 Robert Carr, Federal Protection of Civil Rights, 108-110; Michael Belknap, Federal Law and Southern Order, (Athens: The University of Georgia Press, 1995), 15. 23 John Eliff, The United States Department of Justice, 145.
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Justice Department believed the Supreme Court tied its hands and made it nearly impossible to
indict police officers for police brutality because they would have to prove the officer’s state of
mind.24 But Roosevelt’s creation of the Civil Rights Division provided a template for future administrations if they wanted to protect African Americans from racial violence.
Harry S. Truman
The presidency of Harry S. Truman reflected a transition period for African Americans’
in their quest to achieve freedom and the Justice Department’s plan to protect them from racial
violence. The Screws decision made it almost impossible to secure a conviction of a police
officer.25 The Justice Department still made some efforts to prosecute and indict obvious
violations under the “color of law” or “conspiracy” provisions. When they could not use the
“color of law” and “conspiracy” provisions, they relied on other federal laws, such as the
Lindbergh kidnapping law.26 While Truman’s administration pushed for policies that provided
for better treatment of African Americans, he did not focus on the issue of lynching to the same
extent as Roosevelt. The number of lynchings had decreased to about 2 per year, and this
allowed African American organizations to focus on segregation, job opportunities, and
housing.27 It also allowed the Truman administration to concentrate on episodic law and order,
specifically juvenile delinquency and organized crime.
Truman had to address the issue of organized crime because of its growing influence within society and the swirling rumors about his ties to certain crime families. The FBI had
24 Michael Belknap, Federal Law and Southern Order, 15. 25 John Eliff, The United States Department of Justice, 208. 26 Ibid., 302. 27 The lynching statistics are from the Newspapers articles, Tuskegee Institute and the NAACP's "Thirty Years of Lynching."
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reviewed in detail a book written by Roosevelt's Press Secretary, Jonathan Daniels, in which he
disputes the notion that Truman had ties to an organized crime leader named Tom Pendergast.
However, an FBI official told J Edgar Hoover’s Chief aide that “the close ties between Truman and Pendergast are clearly shown.”28 Walter Winchell, a newspaper gossip writer and frequent
FBI informant, told J. Edgar Hoover that Secret Service agents told him that organized crime syndicates often visited Truman at the Blair House. These crime families would complain about the Secret Service taking away their guns.29 The day after Hoover received this information,
Truman made a public speech declaring his intention to study the problem of organized crime.
He boasted that “many notorious gangsters” had been arrested with the Justice Department filing
over 36,000 criminal cases. Truman directed the Attorney General to convene special grand
juries in Miami, Los Angeles, Kansas City, Newark, Philadelphia, and Scranton to seek out offenders against federal tax, narcotics, white slave, and other laws.30
Politically, Truman had to address the issue of organized crime because Senator Estes
Kefauver established the Senate Committee to Investigate Organized Crime in Interstate
Commerce. This Committee called mobsters, gangsters, and members of the mafia to testify to
their knowledge of crime syndicates. Over 30 million people watched these live testimonies as
they heard lurid stories about the inner workings of the mob. The committee determined that
these “gangsters” had vast economic resources that allowed them to consolidate their political
28 Federal Bureau of Investigations, Freedom of Information Act Records, Unknown to L.B. Nichols, October 11, 190. 29 Federal Bureau of Investigations, Freedom of Information Act Records, Walter Winchell to J Edgar Hoover, March 28, 1951, 187. 30 Harry S. Truman: "The President's News Conference," March 29, 1951, ed. Gerhard Peters and John T. Woolley, The American Presidency Project.
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and economic positions. Truman provided the Committee with access to these mobster’s tax
records through executive order which could have led to future investigations.31
Truman also had a significant concern for juvenile delinquency and argued for "gentler
forces,” that included “education, religion, home training, family, child guidance, and
wholesome recreation.”32 Truman blamed social conditions and the War for the problem.33
Attorney General Tom Clark held the National Conference for the Prevention and Control of
Juvenile Delinquency in 1949. They developed over fifteen reports that recommended
improvements to education, recreation, and summer jobs. Truman endorsed these proposals and issued a proclamation encouraging civic and local leaders to implement them in their
communities. The issue of juvenile delinquency was serious enough for the Democratic Party to
include it in their platform as they competed with Dwight D. Eisenhower for the presidency. 34
Dwight D. Eisenhower
When Dwight Eisenhower took office, he confronted a rise in juvenile delinquency and
organized crime. Throughout the 1950s, newspapers and magazines printed a series of articles
about increased juvenile delinquency. Newsweek explained that the juvenile delinquents of the
1950s were different from the 1920s because "today's delinquents kill." Movie studios created
over sixty films related to juvenile delinquency between 1950 and 1960. The FBI and the
31 Special Committee on Organized Crime in Interstate Commerce (The Kefauver Committee) https://www.senate.gov/artandhistory/history/common/investigations/Kefauver.htm#Process 32 Harry S. Truman, Address Before the Attorney General's Conference on Law Enforcement Problems., ed Gerhard Peters and John T. Woolley, The American Presidency Project. 33 Harry S. Truman: "Address in Columbus at a Conference of the Federal Council of Churches." March 6, 1946, Gerhard Peters and John T. Woolley, The American Presidency Project. 34 Democratic Party Platforms: "1948 Democratic Party Platform," July 12, 1948, ed. Gerhard Peters and John T. Woolley, The American Presidency Project.
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Children's Bureau issued statistics throughout the 1950s showing dramatic increases in juvenile crime and incarceration. 35 Eisenhower responded by pledging $165,000 to fight juvenile delinquency to supplement the “great work” of organizations like Youth of America. He believed that youth training programs could alleviate social conditions that led to juvenile delinquency.36
He also proposed federal legislation to assist the states in combatting juvenile delinquency, recommended new state grants to diagnose and treat juvenile delinquency, and provide training of personnel hired to reduce juvenile delinquency. 37
Eisenhower also had to grapple with organized crime because it had grown to such proportions that criminal syndicates infiltrated many economic and political institutions.38 In the early part of 1954, the Justice Department alleged that organized gangsters violated racketeering statutes by bribing their way into controlling Federal Housing Administration construction loans.
The Hoffman-Capehart Senate Committee investigated homebuilders and real estate moguls who took advantage of the program. Throughout several weeks, the Committee called notable real estate developers such as William Levitt, Alfred Gross, Joseph Mage, and Fred Trump, the father of Donald J. Trump.39 Disgusted by the fraud, Eisenhower fired the FHA Commissioner along with 121 other officials, released the tax records of the individuals involved to the Senate
Committee, and established a special unit within the Justice Department’s Criminal Division to
35 Jason Barnosky, “The Violent Years: Responses to Juvenile Crime in the 1950s” Polity, 38, No. 3 Jul. 2006, 320-323. 36 Dwight D. Eisenhower: "Remarks to the 44th National Council of the Boy Scouts of America." May 29, 1954, ed. Gerhard Peters and John T. Woolley, The American Presidency Project. 37 Dwight D. Eisenhower: "Annual Message to the Congress on the State of the Union.," January 5, 1956., ibid., “Annual Message to the Congress on the State of the Union," January 6, 1955, Ibid, "Special Messages to the Congress Recommending a Health Program.," January 31, 1955. Ibid., 38 Burke Marshall Personal Papers. Assistant Attorney General Files, 1958-1965 (bulk 1961-1964). Fund for the Republic, 1958-1959. Goe, Robert: "Crime and the Corporation," 21 December 1958. 39 Burke Marshall Personal Papers. Assistant Attorney General Files.
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handle issues related to this case.40 Eisenhower informed the Committee a month later that the
Justice Department indicted over 200 individuals for this scheme.41 Eisenhower’s aggressiveness
mirrors the attention Herbert Hoover gave to apprehending and convicting Al Capone.
Eisenhower, however, did not demonstrate this same level of aggressiveness when given
an opportunity to protect African Americans from racial violence. During his presidency, African
American civil rights groups opened a new frontier in their resistance to racism and violence.
Before 1950, white supremacists and police officers targeted African Americans to keep them in
their place. By the 1950s, African Americans, with the support of the Supreme Court, actively
challenged white supremacy through litigation and protest. African Americans’ new-found defiance provoked a violent reaction from white supremacists’ groups which challenged
Eisenhower’s reluctance to use the “color of law” or “conspiracy” provisions to protect them.
Eisenhower believed that state governments had the primary responsibility to enforce civil rights and protect African Americans from racial violence. However, white supremacists began to escalate their violent tactics in their quest to put black people back in their place after
the Supreme Court struck down segregation in its 1954 Brown v. Topeka Board of Education.
White supremacists viewed the Brown decision as a threat and used violence to respond to any
perceived slight from black people. On May 7, 1955, white supremacists shot and killed African
American minister George Lee of Belzoni, Mississippi, because of his active voting registration
drives. The FBI identified the suspects as members of the Segregationist Citizens Council, but
40 Dwight D. Eisenhower, Executive Order 10527—Inspection of Income, Excess-Profits, Declared Value Excess-Profits, Capital Stock, Estate, and Gift Tax Returns by the Senate Committee on Banking and Currency, April 19, 1954, ed. Gerhard Peters and John T. Woolley, The American Presidency Project; Dwight D. Eisenhower, Letter to Senator Capehart on the Investigation of the Federal Housing Administration, October 23, 1954 i=Ibid. 41 "Housing Probe." CQ Almanac 1954, 10th ed., 04-227-04-238. Washington, DC: Congressional Quarterly, 1955.
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the Justice Department refused to indict the individuals responsible for the murder under the
“color of law” or “conspiracy provision.”42 The Justice Department also refused to act when a
group of white men lynched a fourteen-year-old African American boy named Emmett Till. A group of white men dragged Till from his bed in the middle of the night, beat and shot him to death. The pictures of Till’s brutalized face made world headlines and angered people across the
nation. Frederic Morrow, the only black official in Eisenhower’s White House, urged the
President to issue a statement condemning any kind of racist activity. Till’s mother telegrammed
Eisenhower but the White House refused to respond.
Eisenhower also refused to react to the threats of violence related to school integration. A
couple of months before Till’s murder , the Justice Department instructed local U.S. Attorneys
not to use the “color of law” or “conspiracy” provisions to investigate violence associated with
school integration.43 The administration faced its first test when the Hoxie, Arkansas school
board drew up plans to desegregate their schools in August 1955. A Mississippi group called
White Americans Inc. harassed and threatened the members of the school board. William Penix,
the school board’s attorney, asked A.B. Caldwell, Civil Rights Division Chief, to investigate
under the Section 241 “conspiracy” provision. Caldwell instead considered an investigation
under the Section 242 “color of law” provision but wanted to give the state officials every
opportunity to enforce the law.44 As it became clear that state authorities could not or would not
stop the harassment of the board members, Caldwell proposed that the Justice Department
prosecute those responsible for disrupting the integration plans. However, Deputy Attorney
42 Michael Belknap, Federal Law and Southern Order, 34- 36. 43 Ibid., xxx, 37. 44 John Eliff, Justice Department, 408-417.
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General William Rogers refused his request.45 The members of the board sought and received an
injunction against the White Americans Inc. in a district court, which prohibited them from
intimidating, threatening, or attempting to harm the members of the board. The Justice
Department did nothing more than file an amicus curiae to support the board in court.
In February 1956, Autherine Lucy attempted to enroll and integrate the University of
Alabama. Riots broke out, mobs burned crosses and waved Confederate flags, and police Chief
W.C. Rayfield refused to protect her from the threat of violence. The university asked the
Justice Department to send federal marshals, but Justice officials declined. The university suspended Lucy, claiming it could not maintain peace and protect her while she attended.46
Eight months later, Texas Governor Allan Shivers urged the Mansfield, Texas school board to
stop its integration plans and sent the Texas Rangers into the area to arrest anyone, including the black students. Shivers actions denied the black students the right to integrate and emboldened white supremacists’ organizations. President Eisenhower told the press that he saw no reason to intervene because Governor Shivers had restored the peace.47 He glossed over the fact that
Shivers had denied the black students the right to attend an integrated school. Governor Shivers later repeated these same actions in Texarkana with no response from either the Justice
Department or President.
The Justice Department also took a cautious approach in Clinton, Tennessee, even after its board of education asked for protection while it implemented its integration plans. The members of the board received threats and intimidation from white supremacists’ groups like the
45 Michael Belknap, Federal Law and Southern Order, 38-39. 46 Ibid., 29-37; Carl, Brauer, John F. Kennedy and the Second Reconstruction, (New York: Columbia University Press, 1977), 2. 47 John Eliff, Justice Department, 436.
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threats received by the Hoxie, Arkansas Board of Education. The district court enjoined those
white supremacists’ groups as well. The Justice Department declined to help until a mob
attacked a white minister which led U.S. Attorneys to seek the arrest of sixteen people for
criminal contempt. In each of these instances, white supremacists learned that they could stop
integration through inciting violence with no fear of federal intervention. Eisenhower even
declared on July 17, 1957, that he could not under “any set of circumstances” imagine sending
troops into any state to enforce the Supreme Court’s decision. 48
A few months after Eisenhower’s declaration, Little Rock, Arkansas city officials asked the administration to send U.S. marshals to assist in maintaining order as they tried to integrate their schools. Arkansas Governor Orval Faubus asked the Justice Department for its plans to enforce the Brown decision, but Deputy Attorney General Rodgers told him that they could do little to help. Politically, Governor Faubus did not want to use state resources to enforce the
Brown decision, and he implored the federal government to enforce the integration order. When
Eisenhower refused, Faubus reprised the tactics of Governor Shivers and used the National
Guard troops to turn the black students away from Central High School. Even though Faubus claimed that he denied the student’s access to preserve the peace, a federal judge placed an injunction on his actions, and he had to withdraw the troops.49
When the mobs grew to make it impossible for the students to enter the school
peacefully, President Eisenhower decided to send troops into Arkansas. 50 On orders from
48 Michael Belknap, Federal Law and Southern Order, 46-49. 49 Ibid., 49. 50 Dwight D. Eisenhower, Executive Order 10730—Providing Assistance for the Removal of an Obstruction of Justice Within the State of Arkansas, September 24, 1957, ed Gerhard Peters and John T. Woolley, The American Presidency Project.
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Attorney General Herbert Brownell, Justice Department lawyers already prepared a
memorandum arguing that the President could send troops to Little Rock under Title 10, Sections
332 and 333 of U.S. Code which empowered him to use the military to remove obstructions to
the authority of the United States and end any violence that hindered the execution of federal
law.51 Eisenhower’s use of Sections 332 and 333 to protect the equal protection rights of African
Americans in Little Rock, Arkansas occurred a little over 100 years after Millard Fillmore cited
this same authority to enforce the Fugitive Slave Act in Boston.52 Even as African American
civil rights leaders celebrated Eisenhower's use of federal troops, many of them believed that the
Justice Department could have prevented this chaos by prosecuting those individuals who used
violence to obstruct the civil rights of African Americans. These same groups would find
themselves bitterly disappointed when John F. Kennedy took the same cautious approach.
John F. Kennedy
Like Dwight D. Eisenhower, John F. Kennedy initially refused to protect African
Americans from racial violence. His Attorney General, Robert F. Kennedy, wanted to make the
Justice Department an ally of civil rights but wanted to do so without force.53 Civil rights activists made this goal almost impossible as they protested against Southern officials who
opposed integration and voting rights. The Congress of Racial Equality (CORE), the Student
51 Michael Belknap, Federal Law and Southern Order, 47-49. 52 Sections 332 and 333 come from the Militia Act of 1792 which gives specific instructions on when the president can use the military and the militia to assist the states when there is an open insurrection. The Militia Acts of 1795 and 1807 gave the president power to call the troops and militia without the permission of the state legislature and Governor, especially in instances where the state officials are in rebellion against the federal government. 53 Carl Brauer, John F. Kennedy, and the Second Reconstruction, 152.
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Non-Violent Coordinating Committee (SNCC), and the Southern Christian Leadership
Conference (SCLC) created “crisis-packed” situations that forced the federal government to act.
On April 28, 1961, James Farmer informed President Kennedy that CORE planned to
take Greyhound buses throughout the South to determine if they had complied with court orders
and integrated their bus terminals. They called themselves the Freedom Riders, and they faced
intense levels of violence in Rockhill, South Carolina, Anniston, and Birmingham, Alabama. The
white supremacists’ groups hit their buses with firebombs, beat up passengers and knocked them
unconscious. The local police often failed to protect the Freedom Riders, and at times even
participated in the violence. Robert Kennedy called Alabama Governor John Patterson to receive
assurances that he would ensure the safety of the riders. If he could not protect the Freedom
Riders, the President reluctantly promised to send federal law enforcement into Birmingham. 54
Patterson did not want the military or federal law enforcement occupying Alabama, and he convinced Kennedy that he would preserve “law and order” by protecting the Freedom Riders.
When the Freedom Riders reached Montgomery on May 20th, they encountered a violent mob of
1,000 white supremacists with no police in sight. President Kennedy dispatched the National
Guard using the same authority Dwight Eisenhower used in Little Rock. Four hundred federal
marshals also assembled at nearby Maxwell Airforce Base. The next day violent white
supremacists’ groups gathered outside a church where the Freedom Riders and Martin Luther
King Jr. met to plot their strategies. The local police refused to protect the church, and the
marshals had to stop the mob from advancing on the parishioners. The marshals engaged with
the mob until Governor Patterson eventually declared martial law and restored order which
54 Mary Frances Berry, Black Resistance White Law,147; 148 Michael Belknap, Federal Law and Southern Order, 78-79; 83.
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permitted the federal law enforcement officers to fall back.55 After the State Police took control
of the situation, Attorney General Robert Kennedy ordered the marshals back to their posts and
reemphasized his strong belief that the local law enforcement should have exclusive control over
these matters. 56
Civil rights organizers also forced the administration to intervene when they started a voter registration drive throughout the South. In Georgia, Mississippi, and Alabama, the police
arrested, beat up and even shot at field workers. In Mississippi alone, voter registration workers
experienced over sixty-two incidents of violence over 18 months, including murder and arson.
Civil rights leaders begged the White House to send troops to protect the voter registration
workers. After some public outrage, the Justice Department indicted three individuals under the
“conspiracy” provision.57
When Sherriff Bull Connor unleashed police violence, attack dogs, and water hoses on the protestors in Birmingham, President Kennedy seemed reluctant to act. After the media showed the horrific images worldwide, Kennedy alerted Governor George Wallace that he planned to put the troops on standby and told Secretary of Defense Robert McNamara to move
some of the soldiers toward the Alabama bases.58 Fortunately for Kennedy, the local authorities
restored order, and he did not have to mobilize the troops.
However, Kennedy did move troops into Oxford, Mississippi after a federal district court
allowed a black student named James Meredith to enroll in Ole Miss. After several calls with
55 Michael Belknap, Federal Law and Southern Order, 85. 56 Statement by Attorney General Robert F. Kennedy, May 22, 1961, Kennedy Pres. Library, Box 10: Files Civil Rights- Alabama, ed. Michael Belknap, Justice Department Civil Rights Policies, 102. 57 Michael Belknap, Federal Law and Southern Order, 109-116. 58 Ibid., 90, 101.
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Mississippi Governor Ross Barnett, President Kennedy decided to leave the protection of
Meredith to local officials. But Barnett insisted that he could not comply with the integration
order because admitting Meredith violated state law. Kennedy implored Barnett to protect
Meredith and demanded assurances that the state police would prevent violence. Barnett did not give Kennedy any assurances other than to say he would do his best to maintain “law and order.”
Kennedy asked him several times, “Can you maintain order, can you keep people from
congregating, and can you tell people loitering to move it along?” Barnett replied, “I don’t
know.” 59 When James Meredith tried to officially enroll, Barnett abdicated state responsibility
for his safety, and the state troopers abandoned Meredith and three Justice Department officials, leaving them at the mercy of a mob that had gathered. The mob attacked the marshals, hit them with bricks and rocks, and eventually fired guns on them. Approximately 150 marshals suffered
injuries. On September 30, Kennedy issued a Proclamation and ordered the military to the
campus.60 The Justice Department’s reluctance to indict and prosecute those using violence to
obstruct African Americans’ civil rights left Kennedy with little choice but to show
overwhelming force.
President Kennedy did not show this same level of hesitation when he undertook
significant steps to address episodic law and order through his initiatives on juvenile delinquency
and organized crime.61 The 1960 Republican and Democratic Platforms called for the expansion
59 Burke Marshall Personal Papers. Assistant Attorney General Files, Kennedy Pres. Library, Mississippi File, 1961-1964. Ole Miss integration: James Meredith, 25 July 1959-25 January 1961 and undated 60 Michael Belknap, Federal Law and Southern Order, ibid., 90-98. 61 Michael Flamm, Law and Order Street Crime, Civil Unrest, and the Crisis of Liberalism in the 1960s, (New York: Columbia University Press, 2005), 14.
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of legislation to combat juvenile delinquency.62 Both Vice President Richard Nixon and Senator
John Kennedy discussed the need to address juvenile delinquency during their presidential campaigns.63 As President, Kennedy established the President’s Committee on Juvenile
Delinquency and Youth Crime to provide recommendations on how to prevent, treat, and control
juvenile delinquency.64 He also proposed and signed the Juvenile Delinquency and Youth
Offenses Control Act which developed techniques “for the prevention and control of juvenile
delinquency and youth offenses, and encouraged coordination between federal government and
state officials.” Under this act, the Secretary for the Health, Education, and Welfare would make
grants to non-profits, state and local governments, and universities so they could develop new
techniques for preventing juvenile delinquency.65 Kennedy’s juvenile delinquency bill differed
from Franklin Roosevelt’s attempts to expand the federal government’s role in fighting crime.
Roosevelt signed legislation that brought issues that crossed state lines into the purview of
federal law enforcement. Kennedy instead decided to use grants to influence how states
responded to crime.66 Roosevelt’s approach meant that the federal government could conduct
more police operations while Kennedy focused on improving the state’s crime fighting
apparatus.
62 Republican Party Platforms: "Republican Party Platform of 1960," July 25, 1960, ed. Gerhard Peters and John T. Woolley, The American Presidency Project; Democratic Party Platforms, 1960 Democratic Party Platform, July 11, 1960, Ibid. 63 Richard Nixon: "Remarks of Vice President Nixon, Airport, Reno, NV," August 2, 1960, ibid.,.; John F. Kennedy: "Excerpts from the Speech of Senator John F. Kennedy, Auditorium (Coliseum), Indianapolis, IN - (Advance Release Text)," October 4, 1960, Ibid. 64 John F. Kennedy: "Executive Order 10940—Establishing the President's Committee on Juvenile Delinquency and Youth Crime," May 11, 1961, Ibid. 65 Public Law 87-274. 66 President Kennedy’s Committee on Juvenile Delinquency and Youth Crime, November 27, 1961, Kennedy Pres. Library.
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Kennedy departed from this approach when he took on organized crime. He asked
Congress for additional authority under the Internal Revenue Service to stop racketeering and
organized crime. 67 By the 1960s, organized crime generated about $13.5 billion in gambling
revenue alone each year. President Kennedy directed all federal law enforcement agencies to
cooperate fully with the Attorney General in his drive against organized crime and to utilize their
resources to the maximum extent in conducting investigations of individuals engaged in criminal
activity on a significant scale.68 Kennedy signed three bills in his first 236 days in office to fight
organized crime. The laws collectively provided for stiff prison sentences for anyone traveling or using the mail to carry out racketeering activities, such as gambling, narcotics distribution, prostitution or bribery and they prohibited the use of wire communications to place bets and wagers.69 Just a month before Kennedy’s assassination, the FBI reported over 925 active
investigations under these statutes with over 132 indictments or convictions pending. Attorney
General Robert Kennedy reported that racketeering convictions increased by 350 percent since
1960 (See Figure 7-1).
67 John F. Kennedy, Special Message to the Congress on Budget and Fiscal Policy, March 24, 1961, Gerhard Peters and John T. Woolley, The American Presidency Project. 68 John F. Kennedy: "Special Message to the Congress on Taxation.," April 20, 1961, ed Gerhard Peters and John T. Woolley, The American Presidency Project. 69 Public Laws 87-228 75 Stat. 498; 87-216 75 Stat. 491; 87-218 75 Stat. 492.
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Department of Justice Racketeering Prosecutions, 1960-1962
Year Indictments Convictions Individuals Indicted Individuals Convicted
1960 17 22 49 45
1961 45 24 121 73
1962 118 86 350 138 Figure 7-1 Source: Robert F. Kennedy, “Program of the Department of Justice on Organized Crime” Notre Dame Law Review 38 no. 6 (Sept 1963), 640
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Conclusion
Presidents from Franklin D. Roosevelt to John F. Kennedy showed a tremendous amount of caution in protecting African Americans from racial violence using the “conspiracy” and
“color of law” provisions. However, President Roosevelt created the Civil Rights Division and tasked it with using those Reconstruction era provisions to protect African Americans.
Eisenhower and Kennedy had those same provisions at their disposal to protect African
Americans but refused to act without pressure from civil rights groups. Civil rights groups caused crisis-packed situations in Arkansas, Mississippi, and Alabama, and forced both
Eisenhower and Kennedy to maintain structural law and order on their behalf.
While these Presidents hesitated to protect African Americans from racial violence, they all took extraordinary steps to develop the president’s control over episodic law and order.
Franklin Roosevelt signed over six laws that expanded the executive branch’s responsibility for gambling, kidnapping, extortion, and firearms. Harry Truman’s Justice Department attacked organized crime in most of the nation’s major cities, bringing thousands of cases before grand juries. Dwight Eisenhower took on organized crime when it committed widespread fraud against the Federal Housing Administration. John F. Kennedy increased the number of racketeering prosecutions by 300 percent. Presidents Roosevelt, Truman, Eisenhower, and Kennedy also addressed juvenile delinquency and believed that youth crime occurred because of poor social conditions. Kennedy addressed this issue by providing grants to states.
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The Civil Rights era provides critical information about the development of the law and
order presidency. During the antebellum era, presidents maintained structural law and order using their Attorney Generals and the U.S. military to recover fugitive slaves. In the
Reconstruction era, Congress empowered the president to use those same executive branch institutions to protect African Americans from racial violence. In the post-Reconstruction era, presidents refused to protect African Americans and increased their level of responsibility for episodic law and order. During the Civil Rights era, African American protests forced presidents to maintain structural law and order again. Roosevelt, Truman, Eisenhower, and Kennedy all preferred to fight organized crime and juvenile delinquency more than protecting African
Americans from racial violence and police brutality. However, African American protests forced these presidents to respond and use their Attorney Generals and military to protect their civil rights. In many ways, this political development returned the presidency as an institution back to the Reconstruction era.
The Civil Rights era was also important for the development of the law and order presidency because presidents solidified their power to maintain episodic law and order. It started with Roosevelt’s vast expansion of federal authority over crime and culminated with
Kennedy using grants to direct the activities of local law enforcement to combat juvenile delinquency. This political development meant that the initial step to fight street-level crime came from Kennedy. However, he used grants to direct the activities of local law enforcement, preserving federalism. His efforts did not work as youth offenders continued to drive up the rate of street-level crime in the 1960s. By the time President Kennedy lost his life to an assassin's bullet, the public was clamoring for a president who would put an end to the rise in crime. It
183 would be up to Lyndon B. Johnson to respond to the public’s anxiety over street-level crime while also protecting African Americans from the violence that obstructed their civil rights.
Chapter 8 The Politics of Law and Order, 1964 to 1974
Presidents Lyndon B. Johnson and Richard M. Nixon had to confront a tumultuous and
uncertain period filled with violence and rising crime rates. Within this environment, a debate
emerged between the Democratic Party led by Lyndon Johnson and the Republican Party led by
Richard Nixon. This debate is called the “politics of law and order.” The politics of law and
order is a public debate typically between political opponents as to what causes crime to occur in
the first place and what steps are needed to eliminate this problem. To play the politics of law
and order, leaders take symbolic and substantive steps to assure the public that they can maintain
episodic law and order while painting their opponents as ineffective or weak.
From 1964 to 1968, Lyndon Johnson engaged in the politics of law and order, claiming
that adverse social conditions led to the rise of crime. He created task forces and implemented
policies that promised to alleviate poor social conditions, calling his “war on poverty” a “war on
crime.” When riots broke out in urban centers, Richard Nixon painted the Johnson administration
as weak on crime during his 1968 election. He promised to be tough and reduce crime rates.
However, his actual policies for addressing crime were similar to President Johnson’s, and in some cases far more lenient and progressive than any of his predecessors. Nixon's administration shows that there is a key difference between the politics of law and order and the policies a president uses to reduce crime.
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Addressing street-level crime, Nixon and Johnson paid less attention to maintaining
structural law and order and did not prosecute a lot of cases under the “conspiracy” and “color of
law” provisions. They did not necessarily have to pursue as many prosecutions under these
provisions because states gradually saw the need to protect African Americans from overt acts of
violence. Likewise, the Civil Rights Act of 1964 created a pathway for the Justice Department to
address discrimination and violence through civil litigation, leaving Johnson and Nixon to focus
on rising crime rates and urban disorders.
Structural Law and Order in the Johnson and Nixon Years
After taking over as President, Lyndon Johnson only had a few months to respond to the
violence carried out against African Americans. Deputy Attorney General Katzenbach told
Johnson he believed that the federal government should stay out of maintaining structural law and order because of the difficulty of indicting individuals under the “conspiracy” and “color of law” provisions. He believed that the local police should protect African Americans, and if
Johnson used federal agents, local police would abdicate their responsibility.1
Throughout 1964 and 1965, civil rights organizations faced serious levels of violence in
St. Augustine, Florida, Selma, Alabama, and Mississippi as they marched and protested for voting rights and equality. Racial mobs beat them with “fists, clubs, knives, iron pipes, and bicycle chains.”2 When Dr. King demanded protection and informed Johnson that his aides had
1 Attorney General Nicholas Katzenbach to President Johnson, Johnson Pres Library, 1964, ed. Michael Belknap, Justice Department Civil Rights Policies, (New York: Garland Publishing, 1991), 320-333 2 Michael Belknap, Federal Law, and Southern Order, (Athens: The University of Georgia Press, 1995), 131.
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been brutally beaten, the Justice Department ignored his plea.3 Justice officials insisted local
state police would protect them and continued to ignore the real threat civil rights organizers
faced each day. When a judge required the sheriff of St. Augustine Florida to release the names
of those he deputized to protect the protestors, most were active members of the Ku Klux Klan.
Burke Marshall, head of the Civil Rights Division, reported that the local police routinely
assisted the Klan in bombing churches, beating up protestors, and killing civil rights leaders.4
Although civil rights leaders begged Johnson for help, he rarely delivered that support.
President Johnson was finally forced to act when three civil rights activists, two white and one black, went missing in June 1964. Neshoba County Deputy Sherriff Cecil Ray Price arrested the three civil rights workers and released them on a $20 bond late that night. When they went missing, civil rights leaders, the parents of the other white protestors in Mississippi, and the media demanded that Johnson send in the FBI. The FBI could not find the three civil rights workers until August 4, on the tip of a paid informant. All three had been shot, and the black civil rights activist was beaten with a blunt instrument, leaving a fractured arm and skull.
This case provided a new sense of energy under the "conspiracy" and "color of law" provisions as the Justice Department indicted and convicted Deputy Sherriff Price along with seventeen others for their role in the murders.5 Johnson also had to act in Selma, Alabama, after state
3 Special Assistant Douglass Carter to Lyndon Johnson, June 11, 1965, Johnson Pres Lib; Michael Belknap, Federal Law and Southern Order, 131; Martin Luther King Jr. to President Lyndon Johnson, May 29, 1964, Johnson Pres. Library, ed Michael Belknap, Justice Department Civil Rights Policies, 236; Lee C. White to Mr. Wyatt Tee. Walker, Executive Director for Southern Christian Leadership Conference, June 10, 1964, Johnson Pres Library, Michael Belknap, Justice Department Civil Rights Policies 263; Martin Luther King Jr and Robert Hayling St Augustine SCLC Chapter to President Johnson, June 10, 1964, Johnson Pres Library. 4 Assistant Attorney General Burke Marshall to Lyndon Johnson, June 5, 1964, Johnson Pres. Library; Michael Belknap, Federal Law and Southern Order, 135-139; Memo to the President "Use of Marshals, Troops, and Other Federal Personnel for Law Enforcement in Mississippi," July 1, 1964, Johnson Pres. Library. 5 Mary Frances Berry, Black Resistance White Law,161
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troopers viciously attacked protestors as they tried to march over the Edmund Pettus Bridge in
route to Montgomery. 6 Prior to the march, Martin Luther King, Jr. asked Johnson to send
intermediaries from the Justice Department. Johnson did not send help. King asked once again
for federal marshals to help prevent acts of “police brutality.” Johnson finally dispatched seventy
deputy marshals and the National Guard to protect the protestors, but only after the police
viciously attacked them. 7
Civil rights organizations learned that they could force the federal government to
intervene by peacefully protesting and provoking a violent reaction from southern white
supremacists’ institutions. However, Johnson and Nixon did not pursue many structural law and
order cases because the Justice Department could confront discrimination under the Civil Rights
Act of 1964 and the Voting Rights Act of 1965. These laws permitted African Americans to file
a complaint with the Justice Department, and career officials could act based on the law and not
necessarily on orders given by the president. For example, during Nixon’s time in office, the
Department of Justice filed an average of sixty-five lawsuits each year under the Civil Rights Act of 1964. 8 This number is more than twice as many than Johnson’s Justice Department filed from
1965 to 1968. This new authority gave the Justice Department a consistent method for
addressing discrimination, using civil litigation, persuasion, and memos to correct
unconstitutional acts.
The passage of these Acts also changed the calculation for many African Americans.
They no longer had to protest or agitate Southern officials over segregation or voting rights.
6 White House to Mayor Smitherman, February 5, 1965, Johnson Pres Library. 7 Martin Luther King Jr. to Democratic National Committee to Marvin Watson, March 8, 1965, Johnson Pres. Library 8 Annual Statistics of the Department of Justice, 1965-1974
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From 1966 to 1968, Dr. King and many civil rights leaders engaged in an intense debate often
referred to as “Where Do We Go from Here. During this time, Dr. King focused on economic inequality and the Vietnam War, while other civil rights leaders ran for public office. Since they were no longer focused on racial justice and protests, civil rights leaders and black Americans were not attacked as often as they were previously. Therefore, the Justice Department would not have any cases filed under the “conspiracy” or “color of law” provisions. The Justice Department also did not have to file as many cases because local law enforcement and state prosecutors began to take these violent acts more seriously. The exceptions were cases of police brutality, as
many states did not want the Justice Department to intervene or interfere with their local affairs.
The threat of Justice Department interference incentivized state and local governments to arrest,
indict, and convict any persons using violence to obstruct the civil rights of African Americans. 9
Lyndon B. Johnson and the Politics of Law and Order
Due to rising crime rates and urban disorders throughout the nation, President Johnson
had to confront the politics of law and order. Before 1964, the politics of law and order existed
almost exclusively at the local level. The public viewed street crime as a local issue and had a
general apprehension about using a national police force to combat it. However, the media’s increased attention to crime pushed the politics of law and order into the national arena. As
President, Johnson understood that the politics of law and order required the perception of decisive action, and he chose to demonstrate that action by tying his war on poverty to his war on crime. Johnson believed that poverty and inadequate social conditions caused crime, and he wanted to prevent criminal behavior by improving social conditions.
9 Michael Belknap, Federal Law and Southern Order, 135-139.
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Johnson declared an unconditional war on poverty in his 1964 State of the Union address.10 He claimed a couple of months later that his poverty bill, also known as the Economic
Opportunity Act of 1964, would take the nation's kids out of "the slums and out of the juvenile delinquency centers of the nation.”11 The Act established youth programs such as the Job Corps, state-operated youth camps, and work-study programs. It also created community action programs, adult education services, and programs to combat poverty in rural and urban communities.12 After signing the legislation, Johnson once again declared that his war on poverty would stamp out crime and juvenile delinquency.13 The administration also approved a
$1 million grant to Harlem to fight juvenile delinquency, provide school improvements, vocational training, employment services, and crime prevention. 14
Johnson sold his anti-poverty initiatives as an anti-crime package throughout his 1964 reelection campaign. Johnson’s strategy allowed Republicans and their presidential nominee
Barry Goldwater to argue that social conditions had nothing to do with the rise in crime. They attributed the rise in crime to the weak criminal justice system and Johnson’s unwillingness to take a tough stance against criminals. Ronald Reagan, while campaigning on behalf of Barry
Goldwater, argued that the youth programs passed by the Economic Opportunity Act would not solve the crime problem, poverty or juvenile delinquency.15 The Republicans received a massive
10 Lyndon B. Johnson, Annual Message to the Congress on the State of the Union, January 8, 1964, ed Gerhard Peters and John T. Woolley, The American Presidency Project. 11 Lyndon B. Johnson: "Remarks at the first Meeting of the President's Commission on Heart Disease, Cancer, and Stroke.," April 17, 1964, Ibid.,; Lyndon B. Johnson: "Remarks in New York City Before the 50th Anniversary Convention of the Amalgamated Clothing Workers.," May 9, 1964, ibid., 12 Public Law 88-452 The Economic Opportunity Act of 1964 13 Lyndon B. Johnson: "Remarks on the City Hall Steps, Dayton, Ohio.," October 16, 1964, ed Gerhard Peters and John T. Woolley, The American Presidency Project. 14 Lyndon B. Johnson: "Remarks in New York City Before the 50th Anniversary Convention of the Amalgamated Clothing Workers.," May 9, 1964, ibid., 15 Ronald Reagan: "Address on Behalf of Senator Barry Goldwater: "A Time for Choosing," October 27, 1964, Ibid.,
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boost after a violent riot broke out in Harlem in July after a New York City police officer shot and killed a black teenager named James Powell. The police shooting sparked a six-day riot made up of young black teenagers and adults. The media captured the events as the rioters broke
into stores; looted merchandise; and threw rocks, bottles, and bricks at the police. Riots also
broke out in Rochester Jersey City, Elizabeth, and Patterson. These riots occurred after Johnson’s
promise that his Economic Act would help these communities. It also took place just two weeks
after the President signed the landmark Civil Rights Act of 1964. 16 Johnson immediately
recognized the connection that white Americans would make with the riots, the pace of civil
rights progress, his poverty program and crime.17 It sparked anxiety amongst Democrats and civil rights leaders because they feared a white backlash. Johnson had already told Press
Secretary George Reedy that he feared that these riots and street demonstrations would hurt his electoral chances in the South.18 Malcolm X said that the rioters “were putting Barry Goldwater into office.”19 Over 37 percent of respondents believed the people participating in the riots were
bad characters, with only 25 percent saying they were victims of despair.20 More believed that
“hoodlums” caused the riots than they believed poverty and other issues were responsible.21 The
riot pushed the issue of crime into the public debate just a few months before the election, and 54
percent said that they were very concerned about maintaining law and order.22 Johnson’s staff
advised that an “anti-vote” or “backlash” would build if he continued to push for civil rights.
16 Jeremy D. Mayer, Running on Race Racial Politics in Presidential Campaigns, 1960-2000, (New York: Random House, 2002), 49. 17 Lyndon Johnson, The Vantage Point Perspectives of the Presidency, 1963-1969, (New York: Holt, Rinehard and Winston, 1971), 95. 18 Lyndon Johnson to George Reedy, July 20, 1964, Digital Tape-Recording University of Virginia 19 "Malcolm X says riots aid, Barry." (Jul 24, 1964,). The Washington Post, Times Herald (1959-1973) 20 Institute for International Social Research. Hopes and Fears, Sep 1964. 21 Louis Harris & Associates. Harris Survey, Aug 1965 [survey question]. 22 Institute for International Social Research. Hopes and Fears, Oct 1964 USGALLUP; Institute for International Social Research. Hopes and Fears, Oct 1964 USGALLUP.
191
While he refused to retreat, Johnson begged civil rights leaders to take a stand against the riots
and postpone any further demonstrations. 23
Barry Goldwater seized on the riots and told his audiences that these things would not
happen if the nation had an Attorney General focused on applying the law instead of pushing for
moderation.24 Goldwater promised to maintain law and order and keep the streets safe from
“bullies and marauders.”25 However, Johnson and the Democrats continued to make the case
that they could solve this issue by changing the social conditions of every American.26 The
American public bought into Johnson’s vision and elected him with 486 electoral votes. As
President, Johnson had to prove that the federal government could do something to stem the
wave of crime. He chose to demonstrate his ability to stop crime by focusing first on the District
of Columbia. 27
Fighting Crime in the District of Columbia
Before passage of the Home Rule Act in 1973, the District of Columbia served as a
policy laboratory for presidents, as they could experiment with specific policies prior to pushing
them out nationally. Presidents also submitted budgets and chose police chiefs for D.C.
Submitting a budget and selecting the police chief offered president’s autonomous control over
23 Lyndon Johnson, The Vantage Point, 109. 24 John Eliff, Crime, Dissent, and the Attorney General: The Justice Department in the 1960s, (Beverly Hills: Sage Publications, 1971), 86 25 “Goldwater’s 1964 Acceptance Speech,” https://www.washingtonpost.com/wp- srv/politics/daily/may98/goldwaterspeech.htm 26 Democratic Party Platforms: "1964 Democratic Party Platform," August 24, 1964, ed Gerhard Peters and John T. Woolley, The American Presidency Project; Lyndon Johnson, The Vantage Point, 160 27 Gallup Organization. Gallup Poll (AIPO), Apr 1965,
192 crime, education, and other issues within the District. With this control, Lyndon Johnson planned to make Washington, D.C. the “model city” for the rest of the nation.
Controlling crime in Washington, D.C. allowed Johnson to win the argument on the politics of law and order. Crime in the nation’s capital had increased by more than 12 percent from 1964 to 1965, with house burglaries, thefts, and robberies quadrupling during the prior decade. Serious offenses had risen 26 percent in one year, with the rate of crime increasing for thirty-seven straight months.28 The national media focused on the crime problems in
Washington, D.C. and throughout the nation. If the President could not control crime in
Washington, D.C., a sixty-nine square mile city that he had exclusive control over, then how could the public feel safe within their communities? Johnson could win the public relations battle in his war on crime and poverty if he successfully reduced crime in Washington, D.C.
President Johnson began with the creation of a Washington, D.C. crime task force and submitted a budget for the nation’s capital that focused almost exclusively on juvenile delinquency. 29 For the past decade, J. Edgar Hoover had been telling presidents that youth offenders had driven the rates of street-level crime skywards. Johnson believed he could reduce street-level crime by addressing juvenile delinquency, and he directed the Departments of
Justice; Commerce; Labor; Health, Education, and Welfare; and the Administrator of the
Housing and Home Finance Agency to participate in the D.C. youth programs established by
28 Lyndon B. Johnson, Remarks on Crime Control at the Signing of the District of Columbia Appropriations Bill, July 16, 1965 ed Gerhard Peters and John T. Woolley, The American Presidency Project 29 Lyndon B. Johnson: "Letter to the Members of the President's Commission on Crime in the District of Columbia.," July 24, 1965, ed. Gerhard Peters and John T. Woolley, The American Presidency Project. Lyndon B. Johnson: "Annual Message to the Congress, the District of Columbia Budget.," January 21, 1964, Ibid.,
193
John Kennedy’s Juvenile Delinquency Act.30 He also used money from his Economic
Opportunity Act to fund special programs in the Cardozo neighborhood of the capital. 31 Johnson believed he could reduce crime by improving social conditions, along with greater education, and training and told the Congress that he planned to expand his plans to the entire country because “crime is a national problem." Johnson expected to accomplish this goal with a particular focus on organized crime, drug rehabilitation, and juvenile delinquency. 32
Johnson’s Nationwide Fight against Street-Level Crime
President Johnson took his plans nationwide and signed the Law Enforcement
Administration Act of 1965 and established a Presidential Commission on Crime. The Law
Enforcement Administration Act borrowed heavily from the language of the Juvenile
Delinquency Act and permitted the Attorney General to give grants to non-profits, state and local governments, and universities for purposes of improving crime prevention.33 Johnson soon learned from Justice officials that Robert Kennedy ran a program that successfully rehabilitated over 70 percent of their teenage prisoners.34 In response, Johnson proposed and signed into law the Prisoner Rehabilitation Act and the Correctional Rehabilitation Study Act of 1965, which collectively created work release programs and grants for research designed to educate personnel working in correctional rehabilitation.35 Each of these laws focused on using grants to assist
30 Lyndon B. Johnson: "Letter to the Attorney General on a Program to Combat Juvenile Delinquency in the District of Columbia.," August 22, 1964, Ibid., 31 Lyndon B. Johnson: "Annual Message to the Congress on the District of Columbia Budget.," January 21, 1965, Ibid., 32 Lyndon B. Johnson, Special Message to the Congress on Law Enforcement and the Administration of Justice, March 8, 1965, Ibid. 33 Public Law 89-197 (79 Stat. 828) Law Enforcement Assistant Act, September 22, 1965 34 Harold Reis to Horace Busby Jr. July 29, 1965. 35 Public Law 89-178, September 10, 1965; 87 Stat. 355.
194
states in crime prevention, and they expanded the president's power to maintain episodic law and
order through actions by state and local governments. These policies persuaded the states to
focus on education and social conditions rather than arrest and punishment. But Johnson’s
approach opened the Democratic Party up to the charge of weakness when crime continued to
spiral out of control.
Soon after Johnson approved these bills, a major riot broke out in the Watts
neighborhood of Los Angeles. The riot occurred when African American residents claimed
police had roughed up a black man named Marquette Frye along with a pregnant woman. White
Americans saw a repeat of the Harlem riots, and they witnessed black young adults and teens
rioting, committing acts of violence and looting. It did not matter if police brutality and years of
frustration led to the riot. It only mattered that lawlessness had broken out throughout the city.
After the Harlem riots, discussions about police brutality and discrimination emerged and gave
witness to the conditions blacks faced each day. Both Johnson and Justice officials, including
Burke Marshall, made the argument that the Harlem riot was a reminder that the nation needed to address the issues that caused “negro frustrations.” 36 After the Watts riots, conversations began in the national newspapers such as The Washington Post and Wall Street Journal about the
“breakdown of the negro family” while referring to the African American rioters as
“hoodlums.”37 A few months after the riots, pollsters recorded that nearly a third of the country
believed that "negroes breed crime."38 Johnson knew these riots could cost him support on the
36 Memo to the President, “Racial Violence in Urban Centers,” Attorney General Burke Marshall to Lyndon Johnson, Johnson Pres. Library August 5, 1964. 37 Behind the riots. Aug 16, 1965, Wall Street Journal) Retrieved from A. B. (1965, Aug 15). 17 Dead in Coast Rioting; 'No End' of Trouble Seen. The Washington Post, Times Herald (1959-1973) Retrieved 38 Louis Harris & Associates. Harris Survey, Oct 1965 [survey question]. USHARRIS.101865.R2G. Louis Harris & Associates.
195
politics of law and order, and undermine his claim that the Great Society could reduce crime and
improved conditions for everyone. He ordered Secretary of Defense Robert McNamara to
increase National Guard training for riot control, directed J. Edgar Hoover to train local police on riot control, and ordered his Secretary of Health, Education, and Welfare to study the dropout program in the District of Columbia and make recommendations as to how they can help prevent future disturbances nationwide.39 Johnson’s order to the Health, Education, and Welfare
Secretary reveals his continued commitment to ending urban riots and crime using education,
training, and economic opportunity.
When it came to organized crime, Johnson took a more aggressive approach with
prosecutions increasing by nearly 2000 percent from 1965 to 1966. He increased racketeering
convictions by 40 percent from 1963 to 1964, while convictions increased 1000 percent for
“gambling, narcotics, bootlegging, prostitution, public corruption, and syndicate operation
fraud.” 40 In 1967 alone, the Justice Department indicted over 1,160 individuals for their
participation in organized crime. However, these prosecutions and convictions would not steal
the headlines away from young black teenagers rioting in urban areas. In the summer of 1966,
the nation had approximately forty-three urban disorders, all initially precipitated by incidents between black residents and the police.41 In 1967, an explosive outburst took place in Detroit
after police raided an African American bar. The resulting riot exploded for six days and resulted
39 Lyndon B. Johnson: "Statement by the President Upon Making Public an FBI Report on the Recent Urban Riots.," September 26, 1964, ed. Gerhard Peters and John T. Woolley, The American Presidency Project. 40 Lyndon B. Johnson: "Remarks Upon Signing the Gun Control Act of 1968.," October 22, 1968., ed Gerhard Peters and John T. Woolley, The American Presidency Project. 41 Mary Frances Berry, Black Resistance White Law, 170. 41 Michael Belknap, Federal Law and Southern Order, 88.
196
in the deaths of over forty people. Johnson ordered the U.S. military into Detroit to restore order
and peace.
At the time, the riots frustrated President Johnson. The percentage of blacks at or above
the median national income had doubled everywhere except the South, and the gap between
whites and blacks had been cut by 75 percent. Johnson complained that it was unfair for a few
“irresponsible agitators to spoil it for me and for all the rest of the Negroes… spoiling all the
progress I’ve made in these last few years.”42 Johnson’s bitterness derived from his feeling that
his Great Society and civil rights policies were being discredited by the very people he was trying to help. Johnson was frustrated and was looking for answers. The White House received a survey from the Department of Labor of 496 African Americans men who were arrested during the Detroit riot, and found that 101 of them cited police brutality as their leading frustration.43
Nearly 55 percent said things in Detroit had gotten better for them economically, which indicates
the level of continued frustration African Americans had with the police. Johnson's White House
Counsel, Harry McPherson, personally surveyed three black teenagers from Northeast
Washington, D.C., about the possibility of a riot. He discovered the same thing the Department
of Labor noticed in Detroit. When he asked what issue really bothered the "Negro people” the
most, the three boys unanimously stated that police brutality ranked above bad housing, lack of
jobs and lack of a quality education. One of the boys had been recently beaten by the police
while being interrogated about a stolen bike. The boys also told the White House that a white
detective killed Robert Barbee, a local respected civil rights leader, and planted a gun on him.
42 Jeremy D. Mayer, Running on Race Racial Politics 71. 43 Williard Witz, Secretary of U.S. Labor Department Memo to the President, August 8, 1967
197
The police officer was arrested and charged, but allowed to go home on bail, sparking more
protest and looting.44
This information troubled the White House since they could not win the politics of law and order by blaming the police for urban riots. The White House knew that the riots had racialized crime, and the public would side with the police over African Americans. The midterm elections of 1966 made this point very real. Democrats lost forty-seven seats in the House and
three Senate seats, and the results forced Johnson’s aides to observe that race rioting and the
advances made by blacks cost them “blue collar” districts.” As Michael Flamm noted, “The
pictures on white America’s television screens, of blacks throwing rocks at cops, carrying goods
out of stores, dancing in front of burning buildings, could not help but make a powerful political
impression.”45 Vice President Hubert H. Humphrey told Johnson that the riots caused a large
number of Americans, including liberals, to display extremely hostile racial attitudes.46 Johnson's
counsel Larry Temple explained the backlash Americans felt toward people like Stokely
Carmichael and Martin Luther King, Jr. He told Johnson that "civil disobedience" should be viewed as criminal disobedience, and recommended that Johnson insert this sentence into his
State of Union Address: "Disregard for law, even in the name of a cause, is unacceptable.
Lawlessness of any form and under whatever guise will not be permitted.”47 But Johnson
resisted the temptation to call out these civil rights leaders. He kept proposing and signing
sweeping legislation to deal with crime including the Omnibus Crime and Safe Streets Act of
1968 that created the Law Enforcement Assistant Administration within the Justice Department.
44 Attorney General Ramsey Clark to Lyndon Johnson, September 22, 1967, Johnson Pres. Library 45 Jeremy D. Mayer, Running on Race Racial Politics, 71. 46 Vice President Hubert Humphrey to Lyndon Johnson, July 27, 1967, Johnson Pres. Library 47 Counsel Larry Temple to Lyndon Johnson, February 14, 1968. Johnson Pres. Library
198
This division would provide “technical assistance to state and local governments, public and
private groups, and international agencies in matters relating to law enforcement and criminal
justice; establish a program to provide financial assistance for higher education for criminal
justice training; facilitate research efforts under the National Institute of Law Enforcement and
Criminal Justice; and provide data service to provide assistance to States and to collect and
disseminate statistical information.”48 This agency would offer states direct help from the federal
government in combatting crime. 49 Johnson also signed the Juvenile Delinquency Prevention and Control Act of 1968, saying: "Criminals are made and not born. They are made by slums,
they are made by bad schools, by bad health, by idleness, and by despair. And until we get
around to curing those ills, we cannot cure crime, and we cannot stop the violence."50 Johnson
believed that “crime, like poverty, was a social problem.”51
Johnson's policies had a lasting impact on how the federal government would seek to
maintain episodic law and order. He created an agency that allowed the federal government to
direct and control the crime-fighting activities of the states through a centralized and
standardized grant process. However, Johnson's administration failed miserably to respond to the
politics of law and order as urban disorders made it look like a nation out of control. The riots
increased once more after the assassination of Dr. Martin Luther King, Jr. This riot so paralyzed
the administration that their initial internal correspondence focused on whether Washington,
48 "Omnibus Crime Control and Safe Streets Act of 1968 Public Law 90-351; 82 STAT. 197 49 Lyndon B. Johnson, Special Message to the Congress on Crime in America, February 6, 1967, ed. Gerhard Peters and John T. Woolley, The American Presidency Project. 50 Lyndon B. Johnson, Remarks Upon Signing the Juvenile Delinquency Prevention and Control Act of 1968. July 31, 1968, ed Gerhard Peters and John T. Woolley, The American Presidency Project; Public Law 90-445 (82 Stat. 462). 51 Lyndon B. Johnson, Special Message to the Congress on Crime in America, February 6, 1967, Ibid.,
199
D.C. could still hold its famed Cherry Blossom Festival.52 These riots had racialized crime as an issue in the minds of Americans, reflecting Johnson’s larger failure to reduce the rate of crime
(See Figure 8-1). Taken together, these circumstances would reduce any chance the Democrats had of winning in the 1968 presidential election.
Violent Crimes and Theft, 1960-1968
7,000
6,000
5,000
4,000
3,000 5,822 5,293
4,099 2,000 3,938 3,777 3,462 3,146 1,0002,246 2,310
0 1960 1961 1962 1963 1964 1965 1966 1967 1968 Year
Figure 8-1
Source: Federal Bureau of Investigations, Uniformed General Crime Statistics, 1960-1968, Criminal statistics are based on per 100,000 persons
52 Counsel Larry Temple to Lyndon Johnson, April 5, 1968. Johnson Pres. Library.
200
The 1968 Presidential Campaign
Richard Nixon's 1968 campaign seized on the unrest caused by the massive demonstrations, widespread violence, assassinations, and campus protests. In this midst of this chaos, Independent, pro-segregationist presidential candidate Governor George C. Wallace called for “law and order,” and racialized crime as a political issue by explicitly tying civil rights progress to the urban disorders and riots. The more civil rights bills Congress passed, Wallace exclaimed, the more “activity we had in the streets.”53 Nixon’s campaign echoed Wallace by adroitly used racial dog whistles, calling the cities “jungles” that could potentially annex the
“affluent suburbs.” 54
Nixon ran a campaign advertisement titled the “First Civil Right,” “Convention,” and
“Crime” that showed dramatic images from the urban riots, and instructed voters to “Vote like
Your Whole World Depended on It.” 55 In addition, Nixon released a chilling Roger Ailes- directed campaign advertisement featuring a terrified elderly white woman walking down a dark urban street. With every step she took, a deep-voiced narrator would recite criminal statistics, reminding the television audience that “violent crime is committed every sixty seconds.” Nixon’s law and order campaign had potency because “it combined an understandable concern over the rising number of traditional crimes—robberies and rape, muggings and murders—with implicit and explicit unease about civil rights and civil liberties.” When challenged about the racial undertone of his campaign, Nixon replied, “Law and order with justice is what Negroes want,
53 Jeremy D. Mayer, Running on Race, 86. 54 Ibid., 89 55 Ibid., 88; The Living Room Candidate. http://www.livingroomcandidate.org/commercials/1968/crime#4023
201 what they need, and they have an even greater stake than whites because they are the main victims of disorder and of illegal activities.” Nixon extolled the responsible “Negro leader” that
“abhorred the extremists” and “wanted to make progress in a peaceful way.”56 He told
Republicans that they must still be the party of Lincoln and push for civil rights.57 He even suggested that the 1964 and 1965 riots were understandable and made America aware that
African Americans desired even more progress. However, Nixon warned that a continuation of riots would spark a white backlash that would reverse “the racial progress made in these troubled years.”58
Nixon’s responses indicate that he had learned to strike a balance in his racial code language. Nixon developed this balance during the Republican primaries because he had opposing him Ronald Reagan on his right and Nelson Rockefeller and George Romney on his left. Nixon’s campaign circled a memo noting that Reagan primarily derived his strength from
“the ideological fervor of the Right and the emotional distress of those who fear or resent the
Negro, and who expect Reagan to show how to keep him in his place.” Meanwhile, Nixon had racial liberals Nelson Rockefeller and Michigan Governor George Romney to his left whose racial progressive records no longer fit within the Republican Party. Nixon staked a position in the middle by emphasizing law and order and courting the support of segregationist Strom
Thurmond during the 1968 Republican National Convention.59
56 Jeremy D. Mayer, Running on Race, 82-88. 57 Richard Nixon, RN: The Memoirs of Richard Nixon, (New York: Touchstone, 1978), 268. 58 Richard Nixon, Remarks on the NBC Radio Network: "A Commitment to Order," March 7, 1968 ed., Gerhard Peters and John T. Woolley, The American Presidency Project . 59 Jeremy D. Mayer, Running on Race, 82-88; Latigua, Jonathan. “Before Trump, there was Nixon and his Divisive Southern Strategy.” Miami Herald, March 2, 2016
202
During the general election, Nixon managed to stake a political position in the middle of
George Wallace and Hubert Humphrey by claiming to stand for both law and order and justice.
Nixon’s “order with justice” or “peace with justice” campaign offered more nuance than
Wallace, but less ambiguity than Humphrey. Humphrey maintained that he was not running for
sheriff, but president.60 He also downplayed the urban riots and told audiences that he, too,
would riot if he did not have anything to look forward to other than rat-infested apartments and
slums. Humphrey blamed these urban riots on the lack of swimming pools and recreation centers
in urban areas. While Humphrey's argument about swimming pools and recreation centers came
from a long line of presidential thinking on the issue of crime, his statement lost him votes.
Humphrey continued to offer nuance while his opponents offered a simple solution, "law and
order.”
Nixon leveraged the feelings many white Americans expressed when they witnessed
urban riots engulf the nation's cities in violence, arson, and looting. These voters believed that
the Great Society failed to deliver on its promise to end poverty and instead rewarded the
lawlessness emerging from the predominantly black community.61 Because Johnson linked his
war on poverty to a war on crime, Nixon claimed that the 50 percent increase in crime was
“adequate proof of the utter failure of the government's war on poverty.”62 Just before the
Democratic Convention, Time magazine reported that law and order loomed as the number one
issue of 1968, even overshadowing the Vietnam War that kept more than 500,000 American
soldiers in Southeast Asia. Michael Flamm argues that any close look at media opinion and
60 Ibid., 88. 61 Jeremy D. Mayer, Running on Race Racial Politics in Presidential Campaigns, 1960-2000, (New York: Random House, 2002), 70. 62 Richard Nixon, Remarks in New York City: "Toward Freedom From Fear," ed Gerhard Peters and John T. Woolley, The American Presidency Project May 8, 1968.
203 archival evidence reveals that "law and order was the decisive issue" for 1968. Internal
Democratic polls showed the public had more concern for law and order than the Vietnam War.
By September, campaign officials believed that Humphrey had gone too far in talking about justice; that the nation had no idea where he stood on law and order; and that the election could not be won with the nation focused on crime. An aide told Humphrey he would lose unless he communicated to the public his "detestation for criminals, agitators, radicals, and disruptors of social order.”63 Humphrey failed to accomplish this task, and Nixon won the 1968 election by a small margin but with a mandate to fight crime.
Richard M. Nixon
President Nixon came into office with a mandate to address the crime issue but viewed it more as a public relations problem than a policy concern. In an outline of their top six domestic priorities, White House advisors prioritized “Law and Order” last on their list and focused almost exclusively on "well-publicized actions against crime."64 Egil “Bud” Krogh, the White House law enforcement liaison, told Nixon they needed a good public relations strategy for their crime program.65
The Nixon administration decided that they could win the politics of law and order if they successfully reduced the crime rate in the District of Columbia. Nixon came into office understanding the importance of combatting crime in D.C. because he campaigned on this specific issue. Crime in Washington, D.C., including homicides and robberies, increased by 19
63 Michael Flamm, Law and Order Street Crime, 163-168. 64 Presidential Aide Kenneth Cole to Bud Wilkinson, October 8, 1969, Nixon Pres. Library Central Files, Nixon Pres. Library. 65 Bud Krogh to John Ehrlichman, September 15, 1969, Nixon Pres. Library Executive Files
204
percent between 1968 and 1969.66 During the campaign, Nixon repeatedly called Washington,
D.C., the nation’s “crime capital.” He promised to make the nation’s capital a “model of law
observance and enforcement.”67
Two weeks after taking the oath of office, The Washington Daily News published an editorial begging Nixon to address the out-of-control crime rate in the District. 68 Attorney
General John Mitchell said that the Washington Daily News editorials showed that the
administration needed to do more than announce the staffing of additional D.C. police. Instead,
Nixon should take the dramatic step of using the U.S. Marshals, FBI, and the Secret Service to
"shore up the District Crime force" so they could stop the crime problem.69 Robert Mayo,
Director for Office of Management and Budget, recommended bringing in additional U.S.
Attorneys from other districts to serve in Washington, D.C. as well increase the training,
information sharing, and laboratory support for local police officers.70 John Ehrlichman wanted
the Attorney General and the Bureau of Narcotics to attack the D.C. drug problem on a “crash”
basis in order to show “dramatic action” on the crime front. 71 Following Ehrlichman’s advice,
Nixon directed Attorney General Mitchell and the Bureau of Narcotics to hire additional
personnel and provide training to local police, public health officials, school teachers, and
correctional officers.72 Nixon also wrote a personal letter to Supreme Court Chief Justice
Warren Justice Burger, asking him to make use of visiting judges to the D.C. District Court to
66 Daniel Moynihan to John Ehrlichman, January 25, 1969, Nixon Pres Library Executive Files. 67 Richard Nixon, Remarks in New York City: "Toward Freedom from Fear," May 8, 1968, ed Gerhard Peters and John T. Woolley, The American Presidency Project. 68 Internal Memo from James Buchanan to the President, January 22, 1969, Nixon Pres Library Executive Files. 69 Attorney General John Mitchell to Richard Nixon, February 4, 1969, Ibid. 70 Robert Mayo to Richard Nixon, 1969, Ibid., 71 John Ehrlichman to Richard Nixon, February 1, 1969, Nixon Pres Library Central Files 72 Richard Nixon to Attorney General Mitchell, February 6, 1969 Ibid.
205
help alleviate a backlog of criminal cases73 Nixon appointed Jerry Wilson to be Washington,
D.C.’s Chief of Police and he increased the number of police officers by 5,000. 74 Nixon and his advisers took these actions in part because of the news coverage and editorials listed in the The
Washington Daily News. Later in 1969, a White House internal memo listed four main goals the
president had to accomplish in order to “win the continued support of the American people.”
The fourth and final goal stated: "Crime in Washington, D.C. Here is an area we need to make
gains. Our solutions can have an impact beyond the District of Columbia because Washington is
the nation's capital and an area where opinion-molders live."75
In addition to the above actions, Nixon proposed and signed into law a 1970 D.C. Crime
Bill called the District of Columbia Court Reform and Criminal Procedure Act. Nixon believed
this bill would serve as a test case for his efforts to combat crime nationwide. A Republican
National Committeeman said that Nixon's Washington, D.C. crime program would be a "national
laboratory." If he could not make it work with "undiluted" authority over the Federal
Government, then his program would not work anywhere.76 The legislation changed the process
for handling juvenile delinquency cases, increased the number of judges, and made it easier for
the police to enter a residence using “no-knock” warrants.77 When Nixon signed this D.C. crime
bill as his first act for addressing crime, he wanted to show the country that he had a serious plan
73 President Richard Nixon to Chief Justice Warren Burger, February 12, 1969, Ibid. 74 Memo Nixon Pres Library Central Files for White House Staff “Crime Rate Decline in the District of Columbia and Nationally, April 7, 1972. 75 Memo for the President, Action Memorandum 1603—Goals of the Administration, November 16, 1969, Nixon Pres Library Central Files. 76 City of Fear and Crime: Nixon Faces Capital Test: Crime in the Capital a Test for Nixon By BEN A. FRANKLIN Special to The New York Times New York Times (1923-Current file); Jan 22, 1969; ProQuest Historical Newspapers: The New York Times, 95. 77 "Congress Clears Controversial D.C. Crime Control Bill." In CQ Almanac 1970, 26th ed., 05-208-05- 219. Washington, DC: Congressional Quarterly, 1971.
206
for eliminating lawlessness. This bill was not just about policy; it was about playing the politics
of law and order.
The politics of law and order required Nixon to take symbolic pro-police stances and he
seized every opportunity to side with police officers against any allegations of police brutality.
Nixon told an unnamed sheriff, “You are further assured that this government's support for you
and your men will never be diminished by sweeping allegations of police brutality so often
echoed in public forums by a thoughtless few."78 President Nixon spoke at police and FBI
graduations, held press conferences on police shootings, and received overwhelming support from law enforcement officials.79 When unprovoked attacks on police officers increased in 1969
and 1970, the FBI held a conference where they invited 100 “carefully selected” law
enforcement officials. 80 President Nixon attended the conference, expressed his never-ending support for the police, and informed the participants of the FBI’s efforts to reduce the number of police officers killed on duty.81 Some of Nixon’s advisors, especially the so-called Five O’Clock
Group along with Donald Rumsfeld, believed that the administration was “overplaying” their
hand on the “police assassination angle.” However, the administration continued to push for
more police support.82
While the Nixon administration took a hardline stance on crime to win the politics of law
and order, it undertook a more nuanced approach in its law and order policies. Nixon proposed
addressing crime in the short term by reorganizing the court system, adding police and increasing
78 Richard Nixon to unnamed Sherriff, June 14, 1971, Nixon Pres Library Executive Files 79 Head of Secret Service James Rowley to Richard Nixon, June 4, 1969 Ibid. 80 Director of Presidential Advance Ronald Walker, to Chief of Staff H.R. Haldeman, "President visits conference on Police Executives on Prevention of Police" Killings, June 3, 1971, Ibid. 81 “Memo to President Nixon,” June 3, 1971, Ibid. 82 Deputy Assistant Dwight Chapin to H.R. Hal H.R. Hardeman, June 4, 1971, Ibid.
207
penalties for certain offenses. But he also wanted to use additional research to address issues
that contributed to crime, such as increased urbanization.83 Nixon’s crime policies did not differ
all that much from Lyndon B. Johnson’s and John F. Kennedy’s as he transferred more resources
to the states through the Johnson-created Law Enforcement Assistant Administration. These
resources created a national criminal justice reference center-- a service that allowed states to
gain access to more information and statistics and develop new technology. 84 Nixon even tried to tackle juvenile delinquency using the same template as the Kennedy and Johnson administrations. He signed both an extension of Kennedy’s Juvenile Delinquency Prevention and
Control Act and an amendment to Johnson’s 1968 Omnibus Safe Streets Act which provided
“grants for community-based juvenile delinquency prevention programs.”85 ” Nixon also
proposed and signed his own Juvenile Delinquency Act which gave Health, Education, and
Welfare funding for juvenile delinquency programs outside of the juvenile correctional system. It
also created the Office of Juvenile Delinquency within the Johnson-created Law Enforcement
Assistance Administration and ensured that local authorities could not confine juvenile offenders
with adults. The law also decriminalized running away and truancy, and required states to
reverse their practice of disproportionately arresting and confining minority offenders.86 Nixon
also extended and amended Johnson’s Prison Rehabilitation Act which reorganized the grants
and gave additional responsibilities to the Department of Health, Education, and Welfare.87
These policies demonstrate continuity between the Nixon law and order policies and those of
Kennedy and Johnson. The Nixon experience also demonstrated the importance of examining the
83 Associate Deputy Attorney General Donald Santarelli to Egil Krogh, August 12, 1970. 84 “Crime” Internal White Outline, No date listed Nixon Pres Library Central File. 85 Public Law 92-31; www.ojjdp.gov/compliance 86 Public Law 93-415 87 Public Law 93-112
208
public policy a president implements more than the rhetoric he or she uses during campaigns.
Scholars must study the internal workings of the White House and not just a president’s public
statements. For example, Daniel Moynihan, an assistant to President Nixon, expressed solidarity
and sympathy to a black jail inmate that blamed racism for his incarceration.88 This letter would have been a perfect opportunity for the administration to publish the letter and their response, telling the inmate that his personal choices landed him in jail. Instead, Moynihan thanked him for his "eloquent and passionate letter," and told him that he is working to solve the issues
mentioned.89 Moynihan passed the letter to Nixon with a note that it “exemplifies” the life of
poor African Americans.
President Nixon's approach to tackling organized crime differed from his plan to fighting
street-level crime. By 1969, organized crime generated revenue that equaled 2 percent of the
Gross Domestic Product.90 Nixon called out the Cosa Nostra by name, calling it an alien and
totalitarian organization. In his first year in office, Nixon authorized the Attorney General to
engage in wiretapping of organized racketeers and he established twenty federal racketeering
field offices located throughout the country, with a unique Federal-State Racket Squad in New
York City. Nixon also requested an additional $25 million in his 1970 budget request which
doubled the number of expenditures used to fight organized crime during the previous year.91
This money added more than $300 million requested for the Law Enforcement Assistance
Administration’s efforts to help state and local governments fight organized crime.92 Nixon also
88 Russell Dukes to Richard Nixon, March 1969, Nixon Pres Library Central File. 89 Daniel Moynihan to Russell Dukes, March 6, 1969, Ibid. 90 Richard Nixon, Special Message to the Congress on a Program To Combat Organized Crime in America, April 23, 1969, ed. Gerhard Peters and John T. Woolley, The American Presidency Project 91 Crime Message, Richard Nixon to Congress August 18, 1970. 92 Richard Nixon, Special Message to the Congress on a Program To Combat Organized Crime in America, April 23, 1969, ed. Gerhard Peters and John T. Woolley, The American Presidency Project.
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created the National Council on Organized Crime and Strike Force that was designed to destroy
organized crime families.93 Finally, Nixon allowed local law enforcement agencies to use the
Department of Defense's equipment (including reconnaissance sensors, command and control
systems, and life support systems) to fight organized crime.94 Most importantly, Nixon signed
the Organized Crime Act of 1970, which included the Racketeer Influenced and Corrupt
Organizations (RICO) provision. This proviso allowed prosecutors for the first time to indict
leaders of criminal syndicates. In previous eras, criminal leaders could claim that their
subordinates acted alone whenever they killed someone. RICO allowed prosecutors to
demonstrate a pattern of behavior by criminal leaders that could result in a conviction and up to
twenty years in prison per each count.95 Overall, Nixon’s approach to organized crime was very
similar to Kennedy and Johnson. Both presidents organized task forces and signed legislation
that targeted and prosecuted organized crime figures using used the same task force approach as
Nixon and relied on new authority from Congress to prosecute and convict members of criminal syndicates.
Nixon, Kennedy, and Johnson also shared a similar approach to fighting street-level
crime, relying to a certain degree on prevention, training, and education. All three presidents
went after organized criminal syndicates by expanding executive authority and using their
Attorney Generals and task forces to prosecute and convict criminal leaders. Nixon differed from
Johnson and Kennedy only in his understanding of how to play the politics of law and order. As
the 1972 election approached, the Nixon administration attacked Democratic presidential
nominee, Senator George McGovern, for his "sociological" and "community-based corrections"
93 John Ehrlichman to Richard Nixon, May 19, 1970. 94 “Coordinator with Department of Defense and National Guard Bureau” Nixon Pres Library 95 Public Law 91-452 Organized Crime Control Act of 1970.
210 approach to fighting crime. Nixon lambasted McGovern for promising more education and training for police instead of standing behind them as they take on tough "hoodlums.”96 Nixon ignored the fact that most of his policies had sociological and community-based corrections and included more money for training than Johnson and Kennedy. In the politics of law and order, it only mattered that you looked tough while making your opponents look weak.
Conclusion
The “Law and Order Politics” era provides critical information about the development of the law and order presidency. As demonstrated at the beginning of this dissertation, presidents maintained structural law and order in the Antebellum era using their Attorney Generals and the
U.S. military to recover fugitive slaves. In the Reconstruction era, Congress empowered presidents to use those same executive branch institutions to protect African Americans from racial violence. In the post-Reconstruction era, presidents expanded their role in episodic law and order while refusing to protect African Americans. During the Civil Rights era, African
American protests forced presidents to maintain both episodic and structural law and order.
During the 1960s and 1970s, urban riots and rising crime rates of the 1960s required Presidents
Johnson and Nixon to focus more on episodic law and order rather than protecting African
Americans from racial violence.
The Law and Order Politics era also shows that both Nixon and Johnson maintained episodic law and order using similar policies. Neither president expanded federal authority directly over street-level crime. Instead, both presidents established federal agencies and divisions to facilitate grants and training to local law enforcement. But Johnson and Nixon did
96“Dick Howard to Dwight Chapin, October 10, 1972, Nixon Pres. Library.
211
differ when it came to practicing the politics of law and order, as each had a different opinion on
what issues caused crime to occur in the first place. Johnson argued that adverse social
conditions led to lawlessness, while Nixon claimed that urban riots and crime occurred because
of the federal government’s unwillingness to be tough on crime. Still, both presidents signed
numerous laws to improve social conditions, eliminate poverty, and reduce recidivism. In
addition, Nixon and Johnson had similar policies on organized crime, focusing on harsher
penalties, expanded authority, and using more federal resources. In sum, Nixon and Johnson
differed in how they approached the politics of law and order but had very similar policies.
This law and order politics era provides additional information concerning the connection
between race and law and order. This dissertation argues that race is connected to structural law
and order because presidents either used their executive branch institutions to recover fugitive
slaves or protect African Americans’ Thirteenth, Fourteenth, and Fifteenth Amendment rights.
However, during the law and order politics era, race and episodic law and order became
connected during Nixon’s 1968 campaign of racially-coded language, including calling the inner
cities “jungles.” Most of Nixon’s references to crime focused on riots carried out by black young
adults and teenagers. However, Nixon’s policies did not connect episodic law and order to race
in a way that aligns with conventional wisdom. Many of Nixon’s policies did not have a “lock them up” and “throw away the key” approach that legal scholars and political scholars associated with the mass incarceration of African Americans. However, Nixon's campaign laid a foundation for future presidents to tie race and crime together, thereby making it possible to lock black
Americans up in record numbers.
Epilogue
American Presidents used their military, federal law enforcement and Justice
Departments to maintain structural law and order along racial lines for nearly two centuries prior to Richard Nixon's 1968 campaign. It started with the recovery of fugitive slaves beginning with
George Washington’s presidency. This use of presidential power shows how the politics of race led to the expansion of the president’s authority to maintain law and order and expand the jurisdiction of the Department of Justice. The politics of race refers to the conflict or resistance between those committed to racial equality and those committed to an established white supremacist hierarchy. Throughout history, African Americans’ resistance and white supremacists’ willingness to use violence to maintain an established racial hierarchy led to the development and expansion of the president’s power to maintain structural law and order.
It started at the very beginning during the Colonial era when slaves refused to accept their life in bondage and escaped from their masters and colonies. Colonial lawmakers created laws to prevent slaves from escaping. Delegates to the Constitutional Convention added the fugitive slave clause to the U.S. Constitution, establishing the basis for the law and order president. But even with this constitutional provision, African Americans refused to accept their status as slaves and escaped to Northern states. Their journeys North hardened the attitudes of abolitionists, causing Northern states to opt out of the fugitive slave recovery process. This led to a sectional conflict that Congress could only resolve by empowering the president to recover fugitive slaves with passage of the Fugitive Slave Act of 1850.
213
Slaves and free African Americans continued to resist and escape their plantations. Their actions forced Presidents Millard Fillmore, Franklin Pierce and James Buchanan to use the U.S. military, delegate authority to their Attorney Generals, and institutionalize the president’s role in recovering fugitive slaves. As slaves continued to escape, Southern states cited the fugitive slave issue as a primary reason for seceding from the Union. Once these states seceded and the Civil
War began, an overwhelming number of slaves escaped, forcing Abraham Lincoln to promise to uphold their freedom through the Emancipation Proclamation. The evidence shows that Lincoln issued the Emancipation Proclamation only after fugitive slaves overwhelmed Union lines, forcing the Union generals to decide whether to free them or return them to their masters.
Lincoln also ushered the passage of the Thirteenth Amendment through Congress, giving the federal government the responsibility for protecting the freedom of the recently emancipated slaves. During Reconstruction, Congress also passed the Fourteenth and Fifteenth Amendments, along with the Civil Rights Act of 1866 and the First Enforcement Act. The 1866 Civil Rights
Act included the extremely significant “color of law" provision that empowered the president to protect African Americans from police brutality and state-sanctioned violence. When Senator
Lyman Trumbull introduced the Civil Rights Act of 1866, he noted that the enforcement provisions were "borrowed from the celebrated Fugitive Slave Law enacted in 1850.” Senator
Trumbull made the case that the president’s power to protect African Americans’ civil rights derived from the original authority presidents received under the Fugitive Slave Act of 1850.
The First Enforcement Act included the all-important "conspiracy" provision that prohibited two or more people from conspiring to deny African Americans their civil rights.
These “color of law" and “conspiracy” provisions are still on the legal books as Title 18 Sections
214
241 and 242, and they empower the president and Justice Department to protect African
Americans from police brutality and racial violence. These laws officially changed structural law and order from recovering fugitive slaves to protecting African Americans’ Thirteenth,
Fourteenth, and Fifteenth Amendments rights. African Americans’ resistance to slavery and their second-class status led to this change in structural law and order and forced presidents to protect them.
In the post-Reconstruction era, presidents from Rutherford B. Hayes to Herbert Hoover
refused to exercise their authority under the “color of law” and “conspiracy” provisions to
protect African Americans. For decades, Ida B. Wells and the NAACP petitioned presidents to
protect them from racial violence. They also lobbied Congress, the general public, and
newspapers editors asking them to speak out against lynching. During the Civil Rights era,
African American protests finally paid off, and presidents began to maintain both episodic and
structural law and order. Franklin D. Roosevelt took the first step and created a Civil Rights
Division with the power to protect African Americans using the two provisions Ulysses S. Grant
used the “conspiracy” and “color of law provisions.” Congress created these provisions during
Reconstruction based on the authority Presidents Millard Fillmore, Franklin Pierce and James
Buchanan received under the Fugitive Slave Act of 1850. Therefore, Franklin Roosevelt’s 1936
plan to protect African Americans from lynching and police brutality derived from the authority
presidents received in 1850 to recover fugitive slaves. Dwight D. Eisenhower, John F. Kennedy,
and Lyndon B. Johnson also had to maintain structural law and order because the civil rights
movement was met with terrorism, lynching, and police brutality. Each violent episode forced
these presidents to consider intervening using the military, federal law enforcement, and the
Justice Department—just as Millard Fillmore, Franklin Pierce, and James Buchanan did to
215 enforce the fugitive slave law. Thus, the politics of race forced presidents in the Civil Rights era to exercise the same authority presidents exercised in the Reconstruction and Antebellum eras.
The politics of race also led to the expansion of the powers of the Attorney General and the Department of Justice. For most of the nation’s history up to 1850, Attorney Generals did not oversee federal law enforcement. After the passage of the Fugitive Slave Act, Attorney Generals directed the actions of U.S. marshals in the recovery of fugitive slaves. Congress subsequently created the Justice Department in 1870, and it spent its initial years protecting African
Americans’ Thirteenth, Fourteenth, and Fifteenth Amendment rights. At the earliest stages of the
Justice Department's existence, its main criminal justice apparatus focused on protecting African
Americans’ civil rights. Based on the historical institutionalist framework, the power and authority that the Justice Department exercises today is shaped by its early days of protecting
African Americans from racial violence. Therefore, not only has the politics of race shaped the development of the president's power to maintain structural law and order, it also shaped the development of the Justice Department from its earliest stages.
Explaining the rise of Episodic Law and Order
The politics of race does not explain why presidents expanded their authority over episodic law and order during the early part of the 20th century. President’s expanded their power over episodic law and order because the invention of cars and other technologies allowed criminals to move beyond state lines. In response, presidents signed laws focusing on sex trafficking, drug and alcohol distribution, gambling, and theft. All of these statutes ensured that the federal government could intervene and stop crimes that covered multiple states. States desperately needed this help as they could not even track criminals once they left their jurisdiction. Criminal syndicates and mob leaders such as Al Capone took advantage of this
216
shortcoming and carried out their illegal operations without fear of prosecution. Given this
development, presidents from Theodore to Franklin Roosevelt focused on expanding federal
authority over crimes that were previously handled at the state level. Crime shifted in the 1960s
and required a different type of action from Presidents Kennedy, Johnson, and Nixon. While
each expanded their authority to combat organized crime in a manner similar to their
predecessors, they used grants and training to help states fight street-level crime. These presidents generally tried to fight street-level crime by working through the local law enforcement apparatus. They had to take this approach because states continued to lack the overall capacity to fight crime at the local level. To assist the states, both Kennedy and Johnson created federal programs that established national standards for policing, rehabilitation, and criminal justice processes. When these efforts failed to reduce crime, Richard Nixon engaged in the “law and order politics” and claimed he could reduce crime by being tough on criminals. At the same time, Nixon took the same approach as Kennedy and Johnson and assisted the states in their efforts to fight crime through grants and training. Taken together, the president's power to maintain episodic law and order emerged because the states lacked the capacity, professionalism, and resources to stop both organized and street-level crime.
Expansion of Presidential Power
This dissertation set out to better understand the president's power to maintain law and
order. This research project revealed that the president's power over domestic affairs is much
larger than many presidential scholars have suggested. For decades, scholars have argued that
presidents have limited power domestically, but enjoy unchecked authority in foreign affairs.
Aaron Wildavsky, for one, noted that presidents have had much more success in “controlling
217
foreign and defense policy than in dominating domestic policies.”1 However, the history of the
law and order presidency contradicts this well-established argument. When Northern states
shouted out “state’s rights” to protect fugitive slaves under the personal liberty laws, Presidents
Fillmore, Pierce and Buchanan used the military and their Attorney Generals to dismantle local
resistance to the federal fugitive slave law. These 19th-century presidents undermine the idea
that early American presidents adhered to the principle of limited power and government.
Instead, they asserted federal authority at a time when the federal government’s powers lacked
the legitimacy it enjoys today. President Grant likewise used this same authority to prosecute
individuals and state officials for violating the civil rights of African Americans. These
prosecutions allowed the federal government and the president to imprison individuals and
groups that violated federal law. Since law enforcement was handled almost exclusively by
locally elected sheriffs and mayors, Grant's actions represented an extraordinary expansion of
federal authority. This argument also contradicts Brian Balogh’s contention that the 19th century
federal government operated mostly on issues that were invisible to the public and unoffensive to
the constitution. Presidents showed visible force in their efforts to recover fugitive slaves, an
exercise of presidential power that the Framers did not envision.
During the Civil Rights era, Franklin Roosevelt directed his Justice Department to indict
and prosecute state officials for violating the civil rights of African Americans. Roosevelt's
directive departed from the custom of allowing states to handle their own affairs. Both Grant's
and Roosevelt's actions were not just an extraordinary expansion of presidential power; they
1 Michael Beschloss, Presidents of War, (Random House, New York, 2018); Wildavsky, Aaron, “The Two Presidencies” Society 35 no. 2 1998: 22-31
218
represented a vast expansion of federal power over the states. This expansion of power continued
under Presidents Eisenhower, Kennedy, and Johnson during violent episodes in Birmingham,
Little Rock, and Selma. Presidential scholars have missed this expansion of presidential power in
part because they have not considered that presidents had been maintaining law and order along
racial lines for nearly two centuries before Richard M. Nixon’s 1968 campaign. When this is
taken into consideration, scholars can see that 19th-century presidents contributed to the
immense power that presidents continue to exercise over federal law enforcement and how the politics of race profoundly affected the institutional development of the presidency.
The law and order presidency is here to stay. In 2016, Donald J. Trump campaigned as
the law and order candidate and, once elected, deployed unprecedented tactics to arrest and
deport immigrants from Latin American countries. During his State of the Union address, Trump
painted immigrants as rapist and killers who must be stopped. Trump promised to use his presidential powers to maintain law and order by stopping illegal immigration. Each of his predecessors promised to maintain law and order in their own way, focusing on the issue they believed Americans cared most about. Barack Obama deported a large number of illegal immigrants during his eight years in power in part to gain conservative support for a larger immigration reform program. George W. Bush merged national security with his law and order powers and took unprecedented steps to stop domestic terrorists. Bill Clinton focused his law and order powers on the inner cities and supported “three strikes and you are out” policies. Ronald
Reagan used his law and order powers to fight a war on drugs. Jimmy Carter and Gerald Ford focused their law and order powers on ending public corruption by elected officials and combatting organized crime in response to the public’s concern over unethical politicians. Each
219 of these presidents demonstrate that law and order is not merely a campaign slogan, but an enduring and critical part of the institution of the presidency.
220
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