Thursday, June 22, 2017

Civil War and Reconstruction

The Emancipation Proclamation

The Emancipation Proclamation
By the President of the United States of America

 

A PROCLAMATION  

Whereas on the 22nd day of September, A.D. 1862,

a proclamation was issued by the President of the United States, containing,  among other things, the following, to wit: 

  "That on the 1st day of January, A.D. 1863, 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; and the executive government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons and will do no act or acts to repress such persons, or any  of them, in any efforts they may make for their actual freedom.

    "That the executive will on the 1st day of January aforesaid, by proclamation, designate the States and parts of States, if any, in which the people thereof, respectively, shall then be in rebellion against the United States; and the fact that any State or the people thereof shall on that day be in good faith represented in the Congress of the United States by members chosen thereto at elections wherein a majority of the qualified voters of such States shall have participated shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such State and the people thereof are not then  in rebellion against the United States."

  Now, therefore, I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-In-Chief of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for supressing said rebellion, do, on this 1st day of January, A.D. 1863, and in accordance with my purpose so to do, publicly proclaimed for the full period of one hundred days from the first day above mentioned, order and designate as the States and parts of States wherein the people thereof, respectively, are this day in rebellion against the United States the following, to wit: 

  Arkansas, Texas, Louisiana (except the parishes of St. Bernard, Palquemines, Jefferson, St. John, St. Charles, St. James, Ascension, Assumption, Terrebone, Lafourche, St. Mary, St. Martin, and Orleans, including the city of New Orleans), Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia (except the  forty-eight counties designated as West Virginia, and also the counties of Berkeley, Accomac, Morthhampton, Elizabeth City, York, Princess Anne, and Norfolk, including the cities of Norfolk and Portsmouth), and which excepted parts are for the present left  precisely as if this proclamation were not issued.

    And by virtue of the power and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States and parts of States are, and henceforward shall be, free; and that the Executive Government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.    And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defence; and I recommend to them that, in all case when allowed, they labor faithfully for reasonable wages.    And I further declare and make known that such persons of suitable condition will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service.

    And upon this act, sincerely believed to be an act of justice, warranted by the Constitution upon military necessity, I invoke the considerate judgment of mankind and the gracious favor of Almighty God.

Ku Klux Klan and Sexualized Racism/Gendered Violence

 Lisa Cardyn

excerpted from: Lisa Cardyn, Sexualized Racism/gendered Violence: Outraging the Body Politic in the Reconstruction South, 100 Michigan Law Review 675-867, 676-680 (February, 2002) (792 Footnotes)

From its establishment in the months following the Civil War by a motley assortment of disgruntled former rebels, the first Ku Klux Klan, like its many vigilante counterparts, employed terror to realize its invidious social and political aspirations. This terror assumed disparate shapes--from the storied nightriding of disguised bands on horseback, to cryptic threats, horrific assaults, and, not infrequently, murder. While students of Reconstruction have considered many facets of klan violence, none to date has focused exclusively on sexual violence in its historical specificity. Yet, as the work of Catherine Clinton, Laura Edwards, and Martha Hodes persuasively demonstrates, sexuality was a critical site upon which the complex and often convoluted racial, gender, and class conflicts of the era were waged, one that must be excavated and analyzed as part of a remarkably robust and resilient system of repression.

This Article examines the calculated deployment of sexualized violence by the Reconstruction-era klans and its relationship to competing notions of justice, citizenship, and sexual propriety. Exploring what is distinctly sexual about klan terror--the sheer pervasiveness, intensity, and ideological coherence of these acts perpetrated as they were within a system of racial dominance long marked by forced sex and procreation--establishes sexualized violence as an essential aspect of the postwar Southern condition. Resonant throughout these events was the indefeasible legacy of slavery. Much as slaveowners and their minions used sexual violence and coercion in displaying and exercising mastery over their human chattel, klansmen systematically molested and violated their victims in an attempt to reinstantiate white male dominance in its antebellum form, in effect replacing the legal infrastructure of slavery that had once authorized their status with extralegal supports of their own making. Violent sex was in both of these cases a performance of status by the dominant actors and a harshly lived reality for its victims. The enduring consequences of these experiences for the freedpeople, their white sympathizers, and subsequent generations lend important insights into the nature of historical traumatization, its potency and memorialization. Although contemporary historians rightly acknowledge that former slaves strived to resist racist assault in its many guises, the terror of the klans imposed formidable obstacles in the paths of many. As is often the case in the study of sexual trauma, the historical record is less forthcoming about the experience of victimization and survival than it is about the actions and designs of its perpetrators. What follows is in part intended to correct that imbalance.

Using the Ku Klux Klan as an exemplar, Part I of this Article provides a brief overview of the structure, functions, and objectives of postbellum white supremacist organizations. Besides being the largest and most notorious of these bodies, the Klan affords the advantages of a comparatively vast and well-trodden documentary base, the import of which will become further apparent in the following pages.

Part II assesses some of the impulses, implicit and explicit, said to have motivated klan violence, in particular the klans' near- obsession with behavior it perceived as sexually transgressive on the part of blacks and whites alike. With these concerns in mind,

Part III ventures upon an extended discussion of the klans' purposeful application of sexualized violence towards the realization of their racialist agenda. Through whippings, rape, lynching, genital mutilation, and other nameless tortures, these groups sought aggressively to undermine the resolve of the freedpeople and their supporters in an effort to reinvigorate a system of uncontestable white male supremacy.

The objectives of klan terror, ordinarily founded on perceived violations of sexual, social, or political conventions are the subject of Part IV. It is here, where vengeance is inspired by some of the very same offenses that the terrorists themselves routinely committed, that the intricate relations of sex, violence, and klanishness are perhaps most conspicuous.

The klans' reign of terror is also instructive in the perspective it offers on competing understandings of law and legal authority from the Civil War through the turn of the century. Part V takes up three such conceptions and assesses their role in the outbreak of sexual violence that beset the Reconstruction South: first, traditional legal mechanisms promulgated by overlapping federal, state, and local authorities charged with upholding the constitutional and affiliated rights of all citizens, including former slaves; second, the law of the klans, wherein klansmen interposed themselves as self-anointed defenders of a defeated social order; and, third, popular justice as it arose within the historical trajectory of American vigilantism. Although klansmen were not entirely successful in imposing their will as law, they nonetheless managed to exercise considerable sway over the populations they targeted in no small measure because of juridical failures to contain the terror swiftly and decisively, punish the guilty, and restore a semblance of order. Their immediate effectiveness aside, the legal processes brought to bear in the war against klan violence--the investigative bodies it engendered, the congressional acts it inspired, and the judicial decisions that ultimately emerged from it--helped lay the foundation of modern civil rights law. For that alone they must be regarded as enormously consequential.

Part VI interrogates the crisis of white masculinity that lay barely concealed beneath this pattern of atrocities, a crisis initiated by wartime losses and exacerbated by new laws guaranteeing racial equality that klan members were desperate to overcome. Not only had southern white men collectively suffered a catastrophic defeat in war and the concurrent destruction of their homeland, but they were further beset with fears that the emancipation of the slaves and their endowment with the rights of citizenship had left their own ranks diminished in stature. Drawing on some of the insights afforded by the growing field of trauma studies,

Part VII contemplates the implications of the klans' exploitation of sexuality for the individuals, families, and communities whose lives were most directly impacted, along with the as yet unrealized capacity of law to remediate injuries of this kind. Much as the once unspeakable traumas of slavery touched the lives of those beyond its immediate grasp, (a fact starkly evinced by the current debate over slave reparations), the collective memory of klan sexual terror has persisted, contributing in intangible but nonetheless significant ways to the perpetuation of de facto subordination in the face of de jure equality.

Through a close analysis of the sexual crimes of the Reconstruction klans, this Article contends that the systematic deployment of sexualized violence against a despised population engenders extraordinary trauma that extends beyond its proximate victims to affect those who stand at a significant temporal, geographic, and imaginative remove. The klans used violent sex with design and deliberation, and they did so precisely because of its effectiveness in accomplishing their ends. This is not, however, a story of unmitigated victimization. Within the narratives that follow, and even more in the indomitable striving of generations of African Americans, there is much to inspire hope that the klans and their successors will be denied the last word. Advancing that aim demands that we recognize the disparate forms such terror has assumed, identify the sources of its potency as they are manifest in distinct historical contexts, and make creative use of the range of domestic and international laws available to undermine its capacity to harm.

Post Reconstruction Justice

 W. Lewis Burke

Excerpted from:  Post Reconstruction Justice: the Prosecution and Trial of Francis Lewis Cardozo, 53 South Carolina Law Review 361-410, 361-366 (Winter 2002) (401 Footnotes Omitted)

[W]e have been cheated out of our rights for two centuries, and . . . I want to fix them in the Constitution in such a way that no lawyer, however cunning or astute, can possibly misinterpret the meaning. If we do not do so, we deserve to be, and will be, cheated again. Nearly all the white inhabitants of the State are ready at any moment to deprive us of our rights, and not a loop-hole should be left that would permit them to do it constitutionally.  Francis L. Cardozo



Impartial justice is the quintessential ideal of the American judicial system. When justice is perverted for political purposes, the Constitution and justice suffer multiple wounds. The robe of justice is stained, the Constitution is denigrated, and history is distorted. Still, the pathology of political perversion of law recurs throughout American history and is a constant threat. While much has been written about these perversions in the nineteenth century Supreme Court cases on race, running from Dred Scott v. Sandford to Plessy v. Ferguson and the cases in between, few scholars have looked at these perversions at the trial level. So the trial of Francis L. Cardozo in South Carolina in 1877 is not an isolated story with no relevance to contemporary American society, law, and history. Instead it is a reminder of the illness that has long infected our system of justice. Just as physicians learn to recognize illness by case studies, lawyers, legal historians, and judges need to be reminded of this pathology at all levels of the judicial system so that they will recognize it and respond appropriately. It is unquestionably true that distorted history perverts our interpretation of justice.

The 1877 trial of Francis Lewis Cardozo, his predetermined conviction, and his pardon present a choice example of this perversion at the trial level. To the lawyer and judge, the political machinations are a chilling story. To the historian familiar with Reconstruction and its demise, the conviction is not surprising, but the facts of the actual trial and conviction are truly an untold example of post-Reconstruction injustice. Moreover, examining this trial should encourage us to begin to fully re-evaluate our notion of Reconstruction corruption. Cardozo's trial was the first and most important in a series of three political show trials intended by the South Carolina Redeemer Democrats to prove that Reconstruction was legally and morally corrupt. The three resulting convictions were the only ones obtained by the Redeemer Democrats in their massive post-Reconstruction corruption investigation. Cardozo's conviction was a personal tragedy not only because it stained his reputation, but also in that he was the only South Carolina Reconstruction politician who served any significant time in jail. Moreover, the conviction was a great symbolic victory for the Redeemer Democrats, as they were able to legitimize the charge that all African American and Republican officials were crooks and scoundrels thus perpetuating the myth of the depravity of Reconstruction governments in the South for decades.

In fact, Cardozo was so vilified that he was the inspiration for the chief villain, black leader Silas Lynch, in D.W. Griffith's film, The Birth of a Nation. Undeniably, Griffith's fallacious film helped to immortalize many racist fables about Reconstruction in the popular mythology of American culture and to resurrect the Ku Klux Klan in 1915. The climax to The Birth of a Nation has the white female heroine rescued by the Ku Klux Klan from the sexual assault by the black Cardozo figure, Silas Lynch. This scene in the classic American film stands as one of the preeminent examples of biased history by which justice is perverted. Even the racist histories before The Birth of a Nation portrayed the story of Reconstruction as one of simple political corruption. However, with the wide dissemination of the film The Birth of a Nation, the story of Reconstruction was morphed into a story of sexual perversion. The popular, racist culture of the times began to assume that rampant sexual depravity characterized Reconstruction, even though there appear to be no recorded cases of sexual assaults of white women by black political figures during that time. Modern scholarship has, in fact, thoroughly debunked the racist sexual mythology of "Birth of a Nation." However, the mythology of political and financial corruption is still a mainstay of the legal history of Reconstruction.

These images of political corruption have also been perpetuated by historians. Early historians, fixed on the notion of the "prostrate state," assumed that all Republican office-holders in Reconstruction South Carolina, including Cardozo, were corrupt, lining their pockets with embezzled state funds. Some modern historians have appropriately pointed out that Reconstruction corruption in the South was consistent with the American political culture of that era involving whites, blacks, Democrat and Republican politicians. Yet, no legal analysis has ever been done on Cardozo's trial nor any other Reconstruction-era corruption trial to test the validity of the verdict. In this regard, Cardozo's trial presents a unique opportunity.

Cardozo did not flee from prosecution. He did not plea bargain, and even after his conviction, he turned down a pardon to try and vindicate himself on appeal. There is a wealth of material from which to examine his case. Using the indictment against Cardozo, one prosecutor's trial notes, the purported "diary" of the chief prosecution witness, Cardozo's appellate brief, newspaper accounts, and the governor's pardon file, as well as other documents and letters, this Article will examine Cardozo's trial and conviction in depth.

These sources reveal the various intersections between politics and justice in Reconstruction South Carolina and Redeemer South Carolina. Often bizarre, and continually shifting, these connections and disconnections among South Carolina's politicians and lawyers do not lend themselves to easy analysis. Conundrums abound. How and why was Cardozo, perhaps the most influential African American in the state, an impeachment target in 1875 by members of his own race and his own party? And why after the Compromise of 1877, when Redeemers took power, would prominent white Democrat politicians who had supported him during his impeachment cut deals with the corruptionists of 1875 to obtain Cardozo's conviction for corruption in 1877? Was he targeted because of his leadership role? If so, then why was he pardoned in 1879 with the support of some of his chief adversaries, even though his trial had been the centerpiece of the Redeemers' systematic campaign against ex- Republican officials, and his conviction one of their greatest legal victories?

. Professor of Law, Department of Clinical Studies, University of South Carolina School of Law.

The Emancipation Proclamation


By the President of the United States of America
A PROCLAMATION
Whereas on the 22nd day of September, A.D. 1862, a proclamation was issued by the President of the United States, containing, among other things, the following, to wit:

"That on the 1st day of January, A.D. 1863, 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; and the executive government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of such persons and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.

"That the executive will on the 1st day of January aforesaid, by proclamation, designate the States and parts of States, if any, in which the people thereof, respectively, shall then be in rebellion against the United States; and the fact that any State or the people thereof shall on that day be in good faith represented in the Congress of the United States by members chosen thereto at elections wherein a majority of the qualified voters of such States shall have participated shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such State and the people thereof are not then
in rebellion against the United States."

Now, therefore, I, Abraham Lincoln, President of the United States, by virtue of the power in me vested as Commander-In-Chief of the Army and Navy of the United States in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for supressing said rebellion, do, on this 1st day of January, A.D. 1863, and in accordance with my purpose so to do, publicly proclaimed for the full period of one hundred days from the first day above mentioned, order and designate as the States and parts of States wherein the people thereof, respectively, are this day in rebellion against the United States the following, to wit:

Arkansas, Texas, Louisiana (except the parishes of St. Bernard, Palquemines, Jefferson, St. John, St. Charles, St. James, Ascension, Assumption, Terrebone, Lafourche, St. Mary, St. Martin, and Orleans, including the city of New Orleans), Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia (except the
forty-eight counties designated as West Virginia, and also the counties of Berkeley, Accomac, Morthhampton, Elizabeth City, York, Princess Anne, and Norfolk, including the cities of Norfolk and Portsmouth), and which excepted parts are for the present left
precisely as if this proclamation were not issued.

And by virtue of the power and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States and parts of States are, and henceforward shall be, free; and that the Executive Government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.

And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defence; and I recommend to them that, in all case when allowed, they labor faithfully for reasonable wages.

And I further declare and make known that such persons of suitable condition will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service.

And upon this act, sincerely believed to be an act of justice, warranted by the Constitution upon military necessity, I invoke the considerate judgment of mankind and the gracious favor of Almighty God.

Subcategories

13th Amendment
Article Count:
5

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