'To This Tribunal the Freedman Has Turned': The Freedmen's Bureau's Judicial Powers and the Origins of the Fourteenth Amendment

• Author: Hon. Bernice B. Donald - Pablo J. Davis
• Position: United States Circuit Judge, United States Court of Appeals for the Sixth Circuit. - Of Counsel, Dinsmore & Shohl LLP; Law Clerk to the Hon. Bernice B. Donald, United States Court of Appeals for the Sixth Circuit, 2017?18; J.D. cum laude, The University of Memphis Cecil C. Humphreys School of Law; Ph.D., History, and M.A., History, The Johns ...
• Pages: 1-45

“To This Tribunal the Freedman Has Turned”: The

Freedmen’s Bureau’s Judicial Powers and the Origins

of the Fourteenth Amendment

Hon. Bernice B. Donald* and Pablo J. Davis**

TABLE OF CONTENTS

Introduction ...................................................................................... 2!

I. Wartime Genesis of the Bureau ....................................................... 5!

A. Forerunners ................................................................................ 6!

B. Creation of the Bureau ............................................................... 9!

II. The Bureau’s Original Judicial Powers .......................................... 13!

A. Judicial Powers Under the First Freedmen’s

Bureau Act ............................................................................... 13!

B. Cession and Reassertion of Jurisdiction .................................. 18!

III. The Battle Over the Second Freedmen’s Bureau Act .................... 20!

A. Challenges to the Bureau’s Judicial Powers ............................ 20!

B. Battle over the Second Bureau Act .......................................... 25!

C. Johnson’s Veto......................................................................... 30!

D. War, Peace, and Milligan ......................................................... 32!

E. Second Version of the Act ....................................................... 37!

F. The Bureau as Experience ....................................................... 39!

IV. The Bureau and the Fourteenth Amendment ................................. 42!

V. Postscript ........................................................................................ 44!

This much abused bureau has . . . done more for the administration

of justice, for the maintenance of order, for the security of person,

liberty, and property, than an army costing tens of millions of

dollars. . . . To this tribunal the freedman has turned for protection,

for justice, for security.

Senator Henry Wilson (R.-Mass.), Feb. 1, 1866.1

Copyright 2018, by BERNICE B. DONALD and PAB LO J. DAVIS.

2 LOUISIANA LAW REVIEW [Vol. 79

If it be asked whether the creation of such a tribunal within a State

is warranted as a measure of war, . . . [a]t present there is no part

of our country in which the authority of the United States is

disputed . . . . Undoubtedly the freedman should be protected, but

he should be protected by the civil authorities . . . . His condition

is not so exposed as may at first be imagined.

President Andrew Johnson, Veto Message, Second Freedmen’s

Bureau Act, Feb. 19, 1866.2

INTRODUCTION

As the horror of the Civil War drew to a close, leaving more than a

half-million dead3 in a population of only 30 million inhabitants, a

tremendous toll of physical and psychic devastation, a president

assassinated, and secession and slavery both defeated, a monster rampaged

through the South. Confederate General Wade Hampton, the scion of a

powerful South Carolina slaveholding family,4 conjured visions of a

grotesque and dreadful leviathan: “The war which was so prolific of

monstrosities, new theories of republican government, new versions of the

Constitution . . . gave birth to nothing which equals in deformity and

depravity this ‘Monstrum horrendum informe ingens.’”5 The Democratic

* United States Circuit Judge, United States Court of Appeals for the Sixth

Circuit.

** Of Counsel, Dinsmore & Shohl LLP; Law Clerk to the Hon. Bernice B.

Donald, United States Court of Appeals for the Sixth Circuit, 2017–18; J.D. cum

laude, The University of Me mphis Cecil C. Humphreys School of Law; Ph.D.,

History, and M.A., History, The Johns Hopkins University; M.A., History,

Columbia University; B.A., History, cum laude, University of Maryland, College

Park.

1. CONG. GLOB E, 39th Cong., 1st Sess. 3057 (1866).

2. Andre w Johnson, Veto Message, Second Freedmen’s Bureau Act (Feb.

19, 1866), AM. PRESIDENCY PROJECT, http://www.presidency.ucsb.edu/ws/?p id

=71977 [https://perma.cc/7BXA-6PPR] (last visited July 11, 2018).

3. JAMES M. MCPHERSON, ORDEAL BY FIRE : THE CIVIL WAR &

RECONSTRUCTION 487 (1992).

4. Wade Hampton II, S.C. ENCYCLOPEDIA, http://www.scencyclopedia.org

/sce/entries/hampton-wade-ii/ [https://perma.cc/KBV7-W3U2] (last visited July

11, 2018).

5. James M. McPherson, Afterword, in THE FREEDMEN’S BUREAU &

RECONSTRUCTION: RECONSIDERATIONS 343, 344 (Paul A. Cimbala & Randall M.

Miller eds., 19 99). The Latin phrase, from the description of th e monster

2018] “TO THIS TRIBUNAL THE FREEDMAN HAS TURNED” 3

Party made a central issue of attacking the “fabulous monster,” upon

which they looked “with a religious though insane horror.”6 Gideon

Welles, President Johnson’s staunchly anti-Reconstruction Secretary of

the Navy, spoke of it as an appalling “engine . . . a governmental

monstrosity.”7

What was this “monster” and why was it so widely hated? It was not

the occupying Union Army, nor the former slaves, now freedpeople, nor

even the Republican Party, but rather a federal government agency t hat

had been in existence for barely one year: the Bureau of Refugees,

Freedmen, and Abandoned Lands, known as the Freedmen’s Bureau

(“Bureau”). George B. Shanklin, a Democratic Congressman from

Kentucky, strikingly expressed the singular place given to this entity as a

paramount symbol of evil for postwar White Southerners: advocating for

the prompt restoration of political rights to participants in the Confederate

cause,8 Shanklin envisioned the benefits of such a policy: “harmony and

prosperity [restored] . . . to a distracted country; the military removed to

the frontier and coast; and, above all, the Freedmen’s Bureau, the

manufacturer of paupers and vagabonds, the fruitful source of strife, vice

and crime, dispensed with, and an exhausted treasury relieved from the

burden of its support.”9

Polyphemus in the Aeneid, can be translated as “horrible, d eformed, gigantic

monster.” DIG. LIBRARY, TUF TS U.: VIRGIL, AENEID, III.658, transl. Theodore C.

Williams, http://www.perseus.tufts.edu/hopper/text?do c=Perseus:text:1999.02

.0054 [https://perma.cc/CJ7Z-DLF4] (last visited July 9, 2018).

6. John & LaWanda Cox, General O.O. Howard and the “Misrepresented

Bureau,” 19 J. S. HIST. 427, 445–46 (1953).

7. CLAUDE G. BOWERS, THE TRAGIC ERA: THE REVOLUTION AFTER

LINCOLN 101 (1957) (quoting GIDEON WELLES, DIARY, Vol. II 433 (1911)). In

this hugely influential—and highly readable—work, originally published in 1929,

Bowers painted the Reconstr uction years in bleak tones as “the reign of the

carpetbagger,” id. at 540, in which “the Southern people literally were put to the

torture,” victims of “the despotic policies” of “daring and unscrupulous men . . . .

The evil that they did lives after the m,” id. at ii. In addition to the language of

monstrosity, critics also painted the Bureau in satanic terms: White Southerners

were seen to view the Bureau as “a diabolical device for the perp etuation of the

national government’s control over the South, and for the humiliation of the

whites before their former slaves.” WILLIAM A. DUNN ING, RECONSTRUCTION

POLITICAL & ECONOMIC 33–34 (1907).

8. REPORT ON MEMPHIS RIO TS & MASSACRES, H.R. Rep. No. 101, 39th

Cong., 1st Sess. at 41–43 (1866).

9. Id. at 44 ( emphasis added).