Inquiry

The formation of the Bureau of Refugees, Freedmen, and Abandoned Lands was an unusual moment in American constitutional history, in which "To one man was accorded legislative, executive, and judicial authority reaching all the interests of four millions of people scattered over a vast territory, and living in the midst of another people . . ."(1) Aside from immediate relief, part of the Bureau's mission was to foster the transition of the millions of former slaves to a state of economic and political self-reliance. When the original vision of a black yeomanry was swept away by Presidential Reconstruction, the economic policy of the nation and the Bureau was to return the freedpeople to labor in the South's White-owned plantation economy.(2) Agents of the Bureau thus waded into the vast sea of Southern social, economic, and political relations in its mission to ensure the actual freedom of the nominal freedpeople. This wiki is dedicated to exploring the efforts of the Bureau in reordering the legal system of the occupied South to sustain an integrated free-labor economy, in place of a racist slave economy.

I. Creation of the Bureau

Many of the functions of the Bureau had been taken on by military commanders, treasury agents, and benevolent societies, including attempts:

"1) to regulate the sale, leasing, and cultivation of these lands; the employment of negroes by planters on plantations, by the government on plantations, and by the government in military camps, home colonies, and infirmary farms; the distribution of rations, medicines, and supplies, and the transportation of freedmen, refugees, and teachers; (2) to provide for intellectual, moral, and religious education, the promotion of justice, the care of freedmen's savings, and the collection of claims of freedmen against the government."(3)

The political push behind its formation came largely from private benevolent societies seeking to systematize the provision of aid to freedpeople.(4)

Two major bills, one in 1865 and the other in 1866, authorized the formation and activities of the Bureau of Refugees, Freedmen, and Abandoned Lands. By the Act of 1865, the Bureau was created in the War Department, and was to "continue during the . . . war of rebellion, and for one year thereafter." To it was committed "the supervision and management of all abandoned lands, and the control of all subjects relating to refugees and freedmen from rebel states, or from any district or county within the territory embraced by the operations of the arms." The Bureau was to be headed by a "commissioner to be appointed by the President," who would report to the President and Congress. The commissioner would also oversee assistant commissioners and an army of clerks, possibly detailed from the military. In addition to its general jurisdiction over abandoned lands, refugees, and freedmen in the rebel states, the Bureau was given the authority to lease lands to "loyal refugees and freedmen," and sell to them after a period of three years.(5)

The Act of 1866 extended the life of the Bureau "until otherwise provided by law," and increased the number of assistant commissioners and personnel. Section Seven added that when, in States that had participated in the insurrection, the "ordinary course of judicial proceedings has been interrupted by the rebellion," it became "the duty of the President of the United States, through the Commissioner, to extend military protection and jurisdiction over all cases" of deprivation of rights or immunities on the basis of "race, color, or previous condition of slavery or involuntary servitude." Section eight made discrimination as in Section Seven a misdemeanor, and place jurisdiction to hear such claims in the Bureau.(6)

Soon after the Act of 1866, the Bureau came to number "upward of 2,000 officers, agents, and other employees. This force covered the States where the beneficiaries were to be found, very much as the Post Office Department [covered] the country."(7)

II. General Program

Refugees and Freedmen

The Bureau Acts were silent on the moral status of slavery. Though disputes about abolition lay at the root of the Civil War, it was treated by Unionists as a war to suppress the rebellion and preserve the Union. President Abraham Lincoln, in the Emancipation Proclamation, had characterized emancipation as a "fit and necessary measure for suppressing [the] rebellion."(8) In defending them, proponents of the Bureau Acts argued that the Bureau was needed to make good on the promise of freedom which had brought former slaves to the aid of the Union.

The condition of the freedpeople was attributed not to the oppression wrought by slavery, but like that of refugees, as a consequence of the War. The legislation and the Bureau were careful to characterize the aid provided by the Bureau was to reflect the immediate need for relief in relation to the War, and not the payment of moral dues. Rumors that freedmen were to receive some form of restitution for past oppression and uncompensated labor were not only false, but considered a barrier to the advancement of national policy. "The belief widely spread among the freedmen of the southern states that the lands of the former owners will, at least in part, be divided among them, has come from the agents of [the Freedmen's Bureau]. This belief is seriously interfering with the willingness of the freedmen to make contracts for the coming year."(9)

The Bureau was designed to suspend aid as quickly as possible. Thus, while the Secretary of War was authorized to issue, through the Bureau, "provisions, clothing, and fuel, as he may deem needful for the immediate and temporary shelter and supply of destitute and suffering refugees and freedmen and their wives and children," there was attached the proviso "That no person shall be deemed “destitute,” “suffering,” or “dependent upon the government for support,” within the meaning of this act, who, being able to find employment, could by proper industry and exertion avoid such destitution, suffering, or dependence."(10)

Abandoned Lands

The United States did come to hold a significant portion of land as a result of the War, land either temporarily abandoned by rebels who went off to war, or land actively confiscated by the United States. It was at first hoped that revenues from the lease and sale of those lands to refugees and freedmen would be sufficient to support the activities of the Bureau.

"When the bureau was created, it was thought that the abandoned lands and confederate property would provide sufficient revenue for its support. So no congressional appropriation was then made."(11)

This plan was disrupted, however, by the President Andrew Johnson's decision to allow many of the former rebels who swore allegiance to the Union to reclaim their lands:

"President Johnson . . . issued a rash of special pardons, restoring the property of former Confederates. Johnson's actions threw into question the status of confiscated and abandoned land, including the Sherman reservation. At the end of July, without consulting the President, [Bureau Commissioner O. O. Howard] issued Circular 12, which instructed Bureau agents to 'set aside' forty-acre tracts for the freemen as rapidly as possible. Presidential pardons, he insisted, did not carry with them the restoration of land that had been settled by freedmen in accordance with the law establishing the Bureau. Johnson, however, soon directed Howard to rescind this order. A new policy, drafted in the White House and issued in September as Howard's Circular 15, ordered the restoration to pardoned owners of all land except the small amount that had already been sold under a court decree. . . . Once growing crops had been harvested, virtually all the land in Bureau hands would revert to its former owners."(12)

Free Labor

The Bureau thus lost its primary means for rendering the freedpeople entirely economically independent. Without land of their own, the freedpeople would be entirely dependent on relationships with Southern landowners in order to support themselves. Aware that this dependency threatened to return the freedpeople to a state of de facto slavery, the Bureau attempted,

"[T]o lay the foundation for a free labor society--one in which blacks labored voluntarily, having internalize the values of the marketplace, while planters and civil authorities accorded them the rights and treatment enjoyed by Northern workers. To the extent that this meant putting freedmen back to work on plantations, the Bureau's policies coincided with the interests of the planters. To the extent that it prohibited coercive labor discipline, took up the burden of black education, sought to protect blacks against violence, and promoted the removal of legal barriers to blacks' advancement, the Bureau reinforced the freedmen's aspirations."(13)

III. The Law of Free Labor

Slave Law

The duty to protect the rights of the freedmen prompted an assessment of the meaning of slavery and freedom. Under the legal regime of slavery, it was expected that "even if the owner should 'exceed the bounds of reason . . . in his chastisement, the slave must submit . . . unless the attack . . . be calculated to produce death."(14) Even though "slave codes had imposed penalties on slave owners who failed to treat their slaves humanely or who killed them maliciously, the protection such provisions afforded black men and women had been minimal, largely because they could neither file a formal complaint nor testify against a white person; moreover, the need to maintain racial unity and control made white witnesses reluctant to testify and white juries even more reluctant to convict."(15) Thus, these minor protections were only vindicated in the off chance that a humanitarian neighbor sought to intervene on behalf of an abused slave.

[It would be useful to have a more detailed account of the legal boundaries of slavery under the Slave Codes, in order to better understand the significance of the transition to "freedom."]

Freedom Under the Bureau

The Bureau commissioner, General Howard, interpreted freedom to mean that the "Negro must be free to choose their own employers, and be paid for their labor. Agreements should be free, bona fide acts approved by proper officers, and their inviolability enforced on both parties." The old system of overseers, tending to compulsory unpaid labor and acts of cruelty and oppression, was prohibited."(16)

While freedmen were "free to choose their own employers," they were not necessarily free not to work. It was assumed by General Howard and the Bureau that the freedmen would continue to labor in plantations, but induced by compensation rather than compelled by physical coercion. Anxious that part of the plantation labor force would tend towards idleness in the absence of physical coercion, General Howard advocated "the use of the vagrant laws which applied to whites, leaving out the whipping post which had still been retained in their law books for minor offenses in some of the States."(17)

Paid for Their Labor

[A recurring problem for the freedmen was that after laboring under contracts for landowners, they would be denied payment once the crop became due. The records of the Freedmen's Bureau would be useful in understanding practices of refusing to respect the property rights due the freedpeople.

For example, agents such as Major Watson, Superintendent of Jacksonport, Arkansas reported that "In many instances the Freedmen having worked faithfully for their employers, are now being turned away without any compensation. These instances occur in localities so far distant from any agent that it is impossible to have such claims adjusted through the agency of the Bureau, and to make their claims through the Civil Authorities would be useless."

Similarly, Lt. George T. Cook reported from Augusta County, Virginia, "In this Co I have received during the month quite a number of complaints from freedmen in regard to sums due them from their employers - mostly for small sums, but in the present undefined position of the authority of Officers in Civil Cases I have been cautious in interfering - I am at a loss how to advise them - if the matters are handed over to the Civil Courts it will require money to prosicute them successfully even then months will elapse before any benefits can be realized even supposing that just trials can be obtained."(18) This practice ranged from simple attempts to defraud, to the use of violence to compel freedpeople to forfeit their contractual rights. For example, an agent in Albany, Georgia, reported:

"Date & Place: Dougherty County, May 23. Victim: HENRY CLAY CARSWELL. Injury: slight flesh wound of the scalp by small shot. Cause: having brought a complaint before the Bureau for nonpayment of wages and being sent back with a summons after having ben told by W. C. BRAY not to come to his place anymore. Attacker: ROBERT BRAY (white).Remarks: civil authorities at the insistances of the agent of the Bur. R.F. & A. Lds. made an arrest. No trial on account of the absence of important witnesses. H. C. CARSWELL sentenced to the penitentiary for four years for having sworn thatW. BRAY shot at him when ROBERT BRAY had done so. No true bill found against ROBERT BRAY."(19)

Once this pattern of criminality is laid out, it would be interesting to see the various techniques used by the Bureau in response. For example, Bureau agents would in many cases secure the debt owed to laborers through a lien on the crop.(20)]

Cruelty and Oppression

[The records of the Bureau are replete with examples of resort to violence by white Southerners in their interactions with freedpeople. In many cases there was no apparent impetus for the use of violence, or it was unreported, or hidden under the hoods of the Ku Klux Klan. In other cases, however, agents were able to glean the immediate causes of the resort to violence.

For example, freedpeople might be attacked simply for disrespecting white authority:

"Date & Place: Dougherty County, March 12. Victim: ROBERT PECK (PEEK?). Injury: shot in left arm. Cause:disobedience of orders & insolent language. Attacker: MRS. MOSS, wife of D. MOSS (white). Remarks: arrested by civil authorities at the insistence of Bureau Agent. Case dropped by consent of ROBERT PECK, MOSS paying the cost."(21)

Or seeking to assert control over their families:

"Victim Assaulted: MARGARET MARTIN. Date: 16 April. Injuries: badly beaten and choked. Cause: she went to see her sisters child & stayed too long. Attacker: JAKE EDWARDS (white). Remarks: advised her to go to a magistrate and have not heard from her since. EDWARDS resides in Oglethorpe County where incident occurred."(22)

Or because of their political allegiance:

5. Date and Place: 10 April 1868 Randolph County. Victim: PETER GRANT. Injuries: stabbed with a knife. Died: 19 April 1868. Cause: political quarrel. Attacker: BEN HOLLAND (Negro). Remarks: arrested by civil authorities, held to bail. Report of Assaults committed upon Freedmen with intent to murder them in the Division of Cuthbert, Georgia from the first of January 1868 to the 31st day of October 1868.

Records of the Assistant Commissioner for the State of Georgia Bureau of Refugees, Freedmen and Abandoned Lands 1865 - 1869 National Archives Microfilm Publication M798 Roll 32 Reports Relating to Murders and Outrages 1865 - 1868 List of Freedmen Murdered or Assaulted 1867

In understanding how the Bureau sought to confront the ubiquity of violence, it would be useful to understand under what circumstances violence was used, when it was tolerated by the community, and how authority could be exercised by the Bureau to punish violent criminals.]

IV. Agents and Advocates

[Bureau officials played conflicting roles as both impartial arbitrators and advocates for the freedmen. Before the re-establishment of state courts following the War, in an effort to ensure the fair adjudication of the rights of freedpeople, without overly unsettling the landowners, General Howard authorized the formation of Bureau tribunals to adjudicate minor disputes. Each tribunal would consist of a Bureau agent, a representative of the White land-owning community, and a representative of the freedpeople. The power of these tribunals to punish, was not to exceed "$100 fine, or thirty days' imprisonment." More serious cases, however, were turned over to the military's provost courts.(23)

The Bureau courts disappeared as authority was restored to the civil courts of the state, upon their admitting the testimony of blacks. Nevertheless, the Bureau retained power not to recognize state where there decisions were grossly unjust to the freedpeople.

This dynamic raises various legal problems: How much choice did complainants have in venue? What were the standards to be used in the various venues? Which laws were applicable?]

Conclusion

-- DuaneLe - 09 Jul 2013

Notes

1 : Peirce, Paul Skeels. The Freedmen's bureau: a chapter in the history of reconstruction. Cambridge: Harvard University, 1904. Available at https://play.google.com/store/books/details?id=34ebSgjuJXoC&rdid=book-34ebSgjuJXoC&rdot=1. At 46.

2 : Foner, Eric. _Reconstruction: America's Unfinished Revolution. New York: Harper & Row, Publishers, 1988. At 18.

3 : Peirce, 32.

4 : Peirce, 4.

5 : _An Act to establish a Bureau for the Relief of Freedmen and Refugees_. 13 Stat 507. See Bruce Frohnen, The American Nation: Primary Sources, ed. Bruce Frohnen (Indianapolis: Liberty Fund, 2008). Chapter: Freedmen’s Bureau Bill Accessed from ttp://oll.libertyfund.org/title/2282/216250 on 2013-07-07.

6 : _AN ACT to amend an act entitled “An act to establish a Bureau for the relief of Freedmen and Refugees,” and for other purposes._ 14 Stat. 173. See Bruce Frohnen, The American Nation: Primary Sources, ed. Bruce Frohnen (Indianapolis: Liberty Fund, 2008). Chapter: Second Freedmen’s Bureau Bill. Accessed from http://oll.libertyfund.org/title/2282/216251 on 2013-07-07.

7 : Howard, O.O. Autobiography of Oliver Otis Howard, Major General, United States Army. New York: The Baker and Taylor Company, 1907. At 217.

8 : http://www.archives.gov/exhibits/featured_documents/emancipation_proclamation/transcript.html

9 : Peirce, 56 (Quoting report submitted by general Grant to President Johnson.

10 : 14 Stat. 173. Bruce Frohnen, The American Nation: Primary Sources, ed. Bruce Frohnen (Indianapolis: Liberty Fund, 2008). Chapter: Second Freedmen’s Bureau Bill. Accessed from http://oll.libertyfund.org/title/2282/216251 on 2013-07-07.

11 : Peirce, 105.

12 : Foner, 159

13 : Foner, 143.

14 : Litwack, Leon F. Been in the Storm So Long: The Aftermath of Slavery. New York: Alfred A. Knopf, 1970. At 286.

15 : Litwack, 282.

16 : Howard, 222.

17 : Howard, 247.

18 : Freedmen's Bureau Records: George T. Cook to R. S. Lacey, June 30, 1866.

19 : Report of assaults with intent to murder, committed upon freed people in the division of Albany from January 1st to October 31st 1868. Records of the Assistant Commissioner for the State of Georgia. Bureau of Refugees, Freedmen and Abandoned Lands 1865 - 1869. National Archives Microfilm Publication M798 Roll 32. Available at http://freedmensbureau.com/georgia/index.htm.

20 : Foner, 166.

21 : _Report of assaults with intent to murder, committed upon freed people in the division of Albany from January 1st to October 31st 1868_. Records of the Assistant Commissioner for the State of Georgia. Bureau of Refugees, Freedmen and Abandoned Lands 1865 - 1869. National Archives Microfilm Publication M798 Roll 32. Available at http://freedmensbureau.com/georgia/index.htm.

22 : Report of the number of Freedmen murdered, assaulted in the sub District of Athens from January 31 to October 31, 1868.

23 : Howard, 252.

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