'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
 
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“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, 201718; 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 FREEDMENS 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, 44546 (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 influentialand highly readablework, 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 3334 (1907).
8. REPORT ON MEMPHIS RIO TS & MASSACRES, H.R. Rep. No. 101, 39th
Cong., 1st Sess. at 4143 (1866).
9. Id. at 44 ( emphasis added).

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