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tions against state offi
cials in federal court further undermined the bill’s eff ec-
tive use to enforce civil rights for the freed community.
Despite limitations, G. O. No. 44 and the Civil Rights Act of 1866 were still
“extraordinary assertions of national power” for their time. Th
e Bureau still
assumed that states eventually would “resume principal responsibility for civil
rights protection,” even though state courts were generally unfavorable toward
the emancipated. Th
e agency’s judicial actions drew much criticism from state
and federal offi
cials, most notably Governor Th
rockmorton and the president.
Since the fi rst Bureau bill never specifi cally authorized Bureau courts, offi
cials
had to depend on President Andrew Johnson’s authority to try cases. He placed
great limitations, pressuring for transferal to civil courts as quickly as possible.
Federal offi
cials in Texas, however, had greater “leeway” than in other states.
Th
e state legislature still had not completed the president’s Reconstruction plan.
“[I]nadequacy was due primarily to the virtually insurmountable practical
obstacles to civil rights enforcement,” noted legal historian Robert J. Kaczorowski,
and “political considerations rather than the inadequacy of legal authority pre-
vented more eff ective civil rights enforcement by the Bureau. ”
With so many orders and proclamations that seemed to confl ict from above,
naturally, confusion existed. Th
e main cause stemmed from the uncertainty
whether General Orders No. 26 applied to Texas (since the state legislature had
yet to complete the president’s Reconstruction plan). As noted, if it did, SACs
would have to transfer cases to civil courts. Kiddoo asked the military head-
quarters at New Orleans for the answer. Th
e Texas district commander, Brevet
Major General Horatio G. Wright, believed the order did, since the president
had declared the rebellion over earlier that spring and civil courts were in
operation. He therefore informed Kiddoo Bureau courts would no longer be
permitted. A worried Kiddoo, who believed “civil courts worse than a farce,”
disagreed, noting the Texas legislature had not fully complied with the presi-
dent’s Reconstruction plan. With confl icting answers, Kiddoo wrote to Com-
missioner Howard about G. O. No. 26, wanting to know if Wright had made a
mistake. Much to Kiddoo’s chagrin, Howard notifi ed him it did apply to Texas
“as well as anywhere else, if the Civil tribunals are in operation.” Meanwhile,
Wright, showing doubt to whether the order applied, contacted his superiors
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Bureau Expansion, Bureau Courts, and the Black Code
at the War Department. From his conversation with them, he issued a new
order that repealed No. 26 within Texas, but only until the state legislature com-
pleted the president’s Reconstruction program. Until then, Bureau courts could
operate.
In late summer 1866 the Texas legislature “completed” the requirements of
Johnson’s Reconstruction Plan and elected a new state government. Th
e freed-
people would now have to fi nd redress in the unfavorable civil courts. Agents
reported numerous instances of civil authorities who “punished [freedmen] by
their law but do not protect them.” When all appeared lost for the agency’s abil-
ity to protect the freed community, Commissioner Howard sent Kiddoo a con-
fi dential letter. Ordered not to publish it, he was to use the letter’s contents as a
framework to reestablish Bureau courts if necessary and to send a copy to each
fi eld agent. Where Bureau courts had been abolished, the instructions were to
be disregarded; but where they still operated, agents were to use this framework
as an outline for their judicial operations. To Kiddoo, the commissioner’s
instructions were not as important as his intent: for the time being, the agents’
judicial responsibilities would remain in eff ect in Texas.
Th
e situation created by congressional statutes, presidential proclamations,
and military general orders created much confusion and uncertainty. Th
ose in
the fi eld fl ooded headquarters with points of clarifi cation. Superiors tried to
remedy the confusion. But for men with little legal training, confusion, of
course, remained. At times, even Kiddoo and military offi
cials were confused at
what applied and what did not. So, too, were the men in the fi eld. Th
erefore,
they had to rely upon their own “judgement [sic] according to what [they] con-
ceive to be right.” With room for interpretation, there never existed uniformity
in the Bureau’s legal procedures in Texas. Agents could only hope to create a
“mutual and satisfactory understanding between the parties.” Whites, however,
saw almost any decision favorable to the freedpeople as outrageous. According
to Nesbit B. Jenkins at Wharton, he “never in any case gives Judgment in favor
of a Plaintiff until the Defendant has been cited to appear and has had ample
means and time allowed him in which to prove his non- indebtedness or Justify
his proceedings.” Samuel A. Craig remembered, “I had a hard time convincing
the white employers that even if the negro did not work, it was no cause for his
beating and assaulting him, and a fi ne of ten or twenty dollars could make them
hot and felt that my judgment was ‘prejudiced,’ ‘outrageous’ etc.” Freedpeople,
on the contrary, greatly valued what agents did for them, evidenced by the
numerous cases brought before them for adjudication, understanding these pro-
ceedings “challenged the racial beliefs in the South and imparted some sense
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The J. B. Kiddoo Era, Summer 1866–Nov. 1866
79
[that] the black person now was a citizen.” Bureau men helped establish the
freedpeople as the newest citizens. Jacob C. DeGress and George C. Abbott, for
example, referred to them as “citizens” long before Congress defi ned them as
such. Oliver H. Swingley implied the same with the “negro is free and entitled
to the same protection . . . as the white man.” Despite what agents did for the
freed community, some historians have criticized them and their judicial pro-
ceedings for being too conservative and ephemeral, concluding “the tragic
failure of the Freedmen’s Bureau [was its] . . . futile eff orts to establish equal
justice in the South.” According to critics, their attempts to ensure equality
turned out to be a “conservative solution to a complex problem.”
Th
ese criticisms, although valid in some limited circumstances, miss the
main point. Th
ese men, as “judge and jury,” achieved the best that could be
expected at the time. Th
ey walked a thin line, balancing the wishes of their
superiors (in Galveston, New Orleans, and Washington), the country’s uneas-
iness with actions threatening federalism, and the nation’s hesitancy to try
civilians in military courts. Moreover, these critics discount the ability of civil
authorities to impede justice in ways not so readily apparent. Civil authorities
could easily create the “illusion” of justice by admitting black testimony and
then disregarding it or delaying the case until the plaintiff ran out of money or
no longer wanted to pursue the matter. Local offi
cials could “investigate” freed-
people’s claims but not indict, or they could investigate, indict, try, and convict
white individuals, but “punish” them leniently. All limited the eff ectiveness to
protect the former slaves’ legal rights. To be sure, the presence of Bureau courts
had a salutary eff ect. Th
ey provided a forum to people who had little money
for legal fees and knowledge about the law. Plus, agents attempted to use their
legal authority to force white Southerners to recognize the freedpeople as
exactly that—free people. Even critics grudgingly admit these courts, despite
their “problems,” benefi ted the emancipated as a “benevolent midwife,” who
demanded “from the southern states legal recognition of the freedmen’s right to
be heard in court. . . .”
Subassistant commissioners’ judicial responsibilities became all the more
important in late 1866. Under Johnson’s Reconstruction plan, former Confeder-
ate states had benchmarks to meet. Desirous to retain as much of the old system
as possible, these state legislatures passed controversial laws in late 1865 and
early 1866, collectively called the Black Code. On the surface (and only aft er
passage of the Civil Rights Act of 1866), lawmakers touted these laws as racially
neutral. But in practice, they aimed to circumscribe the freedoms of recently
emancipated. In 1866 the Eleventh Legislature passed statutes that regulated
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Bureau Expansion, Bureau Courts, and the Black Code
everything from apprenticing minors to punishing vagrancy, from regulating
labor to establishing schools. Th
e Code granted to freedpeople some never
before held rights, including the right to be secure in person and property, to
sue and be sued, to contract, and to marry. Not nearly as punitive as other for-
mer Confederate states’ codes, the Texas Black Code still had the same intent:
reestablishing control of the former slaves.
Kiddoo instructed subordinates either to apply the state laws in a way fair to
both parties or to ensure that local offi
cials did the same. He wanted to ensure
that local offi
cials did not use it in a way that violated the recently passed civil
rights bill. Of those portions abrogated by the Bureau, most important was the
labor law. According to Bureau authorities, its intent was to bring back slavery
in a new form. One measure stipulated any unauthorized termination on the
laborer’s part, “without cause or permission,” resulted in lost wages. Th
e labor
law also outlined stringent codes of conduct for workers. Th
is allowed employ-
ers to deduct wages or simply dismiss him/her for “gross misconduct. ”
With the Code’s adoption, fi eld agents now took a greater interest in appren-
ticeship (see Table 4- 7). In the nineteenth century, apprenticeship was an accepted
and recognized measure to deal with indigent or orphaned children. A practice
mostly confi ned to the North, yet “almost nonexistent” by the beginning of the
war, apprenticeship occurred when a local magistrate determined that a child
was parentless or poor and bound him/her out. Th
ose who received the child
(aft er placing a bond) were required to provide proper housing, medical care,
and education or to teach “a specifi ed trade or occupation.” All contracts had a
release age: all minors under fourteen could be bound with the consent of their
parents or legal guardian until married or upon reaching the age of twenty one,
and anyone fourteen and older could be apprenticed only with parental consent.
Table 4- 7 Apprenticeship Cases Brought Before Bureau Agents in Texas, 1866–1868
Number
Number Won
Percentage Won
Plaintiff
of Cases
by Plaintiff
by Plaintiff
Freedman/men
Freedwoman/women
.
Freedpeople
White Person
.
U.S./Texas Government
Total n=
n=
Note: Cases came from the Register of Complaints in each subdistrict.
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The J. B. Kiddoo Era, Summer 1866–Nov. 1866
81
Under no circumstances were Bureau agents to bind out those old enough to
enter labor contracts. In the North, race played little part in the system. In the
South, especially with slavery’s end, apprenticing became not only a way to care
for indigent black minors, but also a way for whites to procure labor. Th
e Bureau,
in fact, “sought to mediate in these cases . . . as was the pattern with the negotia-
tion of labor contracts for fi eld hands and tenant farmers. . . . ”
Prior to the state’s apprentice law, headquarters ordered agents not to bind
out children or allow civil authorities to do the same. Instead, they had to “make
the best temporary disposition you can for them.” Th
is meant either act as the
minor’s guardian or fi nd a “good home for them [and] give the parties permis-
sion to keep them until further orders. . . .” In most cases agents became the
primary caretaker in the child’s “moral and physical health.” Th
is policy not to
bind out children until the state passed an apprentice law, however, had ramifi -
cations. Although agents refused to apprentice children, state judges went
ahead and bound out freed children to whites anyway. Th
e Bureau’s “wait and
see” policy actually led to a more proactive policy against apprenticeship abuse.
Th
e policy (not binding out children until the state passed an apprentice law)
threatened to increase the number of indigent minor and orphaned children,
since planters initially refused to enter apprentice contracts fearing they would
not be upheld. With their favored options blocked (like compensation for
slaves), these same planters soon warmed to the practice. Further increasing
indigent black children were mothers who could no longer care for their chil-
dren a
nd began leaving them to the care of subassistant commissioners.
Although Bureau offi
cials in Galveston refused to allow children to be bound
out until the state passed an apprenticeship law, fi eld personnel still requested
instructions on exactly what to do. According to Kiddoo, he confessed “the
matter of guardianship” gave the agency the most trouble under his command
in Texas. It appears that a number did not know or understand the policy. “I
have been somewhat at a loss to know what to do with orphan minors,” wrote
Austin agent Oliver H. Swingley, “there being no apprenticeship law in the
State.” Superiors either ignored him or he did not understand their response, for
a month later he again requested “instructions in regard the appointing Guard-
ians for Orphan minor.” Ira P. Pedigo at Woodville asked if “I have the right to
bind them out as poor children are bound out in many of the states.” At Mar-
shall, Hiram Seymour Hall also requested guidance on the organization’s
apprentice policy. Before agents could be educated to the policy, however, supe-
riors shift ed direction and instructed them to recognize and to enforce the
recently passed state apprentice law. Contracts were to be approved only if made
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Bureau Expansion, Bureau Courts, and the Black Code
with no distinction to color, made in good faith by all parties, and made accord-
ing to the state’s law. Headquarters ordered agents not to bind out “children
who have parents [but] to give them to their parents.” Th
e mother was to have
primary control, a policy very similar to the ones followed in Georgia and Vir-
ginia. Th
is policy, however, applied only if the mother, and in a few instances
the father, could fi nancially provide for the child(ren) or to “families that have
competent heads.” If an agent determined a mother unable to care for her child
(such as being on federal relief) or the child lacked a “competent” family mem-
ber, he could allow that child bound out. John T. Raper, for instance, had a case
in which an unmarried freed mother had contracted for room and board with
a white man. She had six children but could care for only three, with “the other
three running wild over the country.” According to Raper, she was “improvi-