History of the Thirty-Ninth Congress of the United States

by William Horatio Barnes

"Now, sir, what was the object of the Freedmen's Bureau, and why was it established? It was established to look after a large class of people who, as the results of the war, had been thrown upon the hands of the Government, and must have perished but for its fostering care and protection. Does the Senator mean to deny the power of this Government to protect people under such circumstances? The Senator must often have voted for appropriations to protect other classes of people under like circumstances. Whenever, in the history of the Government, there has been thrown upon it a helpless population, which must starve and die but for its care, the Government has never failed to provide for them. At this very session, within the last thirty days, both houses of Congress have voted half a million dollars to feed and clothe people during the present winter. Who were they? Many of them were Indians who had joined the rebellion, and had slain loyal people of the country. Yes, sir, we appropriated money to feed Indians who had been fighting against us. We did not hear the Senator's voice in opposition to that appropriation. What were the facts? It was stated by our Indian agents that the Indian tribes west of Arkansas, a part of whom had joined the rebel armies and some the Union armies, had been driven from their country; that their property had been destroyed; and now, the conflict of arms having ceased, they had nothing to live upon during the winter; that they would encroach upon the white settlements; that unless provision was made for them, they would rob, plunder, and murder the inhabitants nearest them; and Congress was called upon to appropriate money to buy them food and clothing, and we did it. We did it for rebels and traitors. Were we not bound to do it?

"Now, sir, we have thrown upon us four million people who have toiled all their lives for others; who, unlike the Indians, had no property at the beginning of the rebellion; who were never permitted to own any thing, never permitted to eat the bread their own hands had earned; many of whom are without support, in the midst of a prejudiced and hostile population who have been struggling to overthrow the Government. These four million people, made free by the acts of war and the constitutional amendment, have been, wherever they could, loyal and true to the Union; and the Senator seriously asks, What authority have we to appropriate money to take care of them? What would he do with them? Would he allow them to starve and die? Would he turn them over to the mercy of the men who, through their whole lives, have had their earnings, to be enslaved again? It is not the first time that money has been appropriated to take care of the destitute and suffering African. For years it has been the law that whenever persons of African descent were brought to our shores with the intention of reducing them to slavery, the Government should, if possible, rescue and restore them to their native land; and we have appropriated hundreds of thousands of dollars for this object. Can any body deny the right to do it? Sir, humanity as well as the constitutional obligation to suppress the slave trade required it. So now the people relieved by our act from the control of masters who supplied their wants that they might have their services, have a right to rely upon us for assistance till they can have time to provide for themselves.

"This Freedmen's Bureau is not intended as a permanent institution; it is only designed to aid these helpless, ignorant, and unprotected people until they can provide for and take care of themselves. The authority to do this, so far as legislative sanction can give it, is to be found in the action of a previous Congress which established the bureau; but, if it were a new question, the authority for establishing such a bureau, in my judgment, is given by the Constitution itself; and as the Senator's whole argument goes upon the idea of peace, and that all the consequences of the war have ceased, I shall be pardoned, I trust, if I refer to those provisions of the Constitution which, in my judgment, authorize the exercise of this military jurisdiction; for this bureau is a part of the military establishment not simply during the conflict of arms, but until peace shall be firmly established and the civil tribunals of the country shall be restored with an assurance that they may peacefully enforce the laws without opposition.

"The Constitution of the United States declares that Congress shall have authority 'to declare war and make rules concerning captures on land and water,' 'to raise and support armies,' 'to provide and maintain a navy,' 'to make rules for the government and regulation of the land and naval forces,' 'to provide for calling forth the militia to execute the laws of the Union, suppress insurrection, and repel invasion,' and 'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.' It also declares that 'the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States,' and that 'the United States shall guarantee to every State in the Union a republican form of government.' Under the exercise of these powers, the Government has gone through a four years' conflict. It has succeeded in putting down armed resistance to its authority. But did the military power which was exercised to put down this armed resistance cease the moment the rebel armies were dispersed? Has the Government no authority to bring to punishment the authors of this rebellion after the conflict of arms has ceased? no authority to hold as prisoners, if necessary, all who have been captured with arms in their hands? Can it be that, the moment the rebel armies are dispersed, the military authority ceases, and they are to be turned loose to arm and organize again for another conflict against the Union? Why, sir, it would not be more preposterous on the part of the traveler, after having, at the peril of his life, succeeded in disarming a highwayman by whom he was assailed, to immediately turn round and restore to the robber his weapons with which to make a new assault.

"And yet this is what some gentlemen would have this nation do with the worse than robbers who have assailed its life. They propose, the rebel armies being overcome, that the rebels themselves shall be instantly clothed with all the authority they possessed before the conflict, and that the inhabitants of States who for more than four years have carried on an organized war against the Government shall at once be invested with all the powers they had at its commencement to organize and begin it anew; nay, more, they insist that, without any action of the Government, it is the right of the inhabitants of the rebellious States, on laying down their arms, to resume their former positions in the Union, with all the rights they possessed when they began the war. If such are the consequences of this struggle, it is the first conflict in the history of the world, between either individuals or nations, from which such results have followed. What man, after being despoiled of much of his substance, his children slain, his own life periled, and his body bleeding from many wounds, ever restored the authors of such calamities, when within his power, to the rights they possessed before the conflict without taking some security for the future.

"Sir, the war powers of the Government do not cease with the dispersion of the rebel armies; they are to be continued and exercised until the civil authority of the Government can be established firmly and upon a sure foundation, not again to be disturbed or interfered with. And such, sir, is the understanding of the Government. None of the departments of the Government understand that its military authority has ceased to operate over the rebellious States. It is but a short time since the President of the United States issued a proclamation restoring the privilege of the writ of habeas corpus in the loyal States; but did he restore it in the rebellious States? Certainly not. What authority has he to suspend the privilege of that writ anywhere, except in pursuance of the constitutional provision allowing the writ to be suspended 'when in cases of rebellion or invasion the public safety may require it?' Then the President understands that the public safety in the insurrectionary States still requires its suspension.

"The Attorney-General, when asked, a few days ago, why Jefferson Davis was not put upon trial, told you that, 'though active hostilities have ceased, a state of war still exists over the territory in rebellion,' so that it could not be properly done. General Grant, in an order issued within a few days—which I commend to the especial consideration of the Senator from Indiana, for it contains many of the provisions of the bill under consideration—an order issued with the approbation of the Executive, for such an order, I apprehend, could not have been issued without his approbation—directs 'military division and department commanders, whose commands embrace or are composed of any of the late rebellious States, and who have not already done so, will at once issue and enforce orders protecting from prosecution or suits in the State, or municipal courts of such State, all officers and soldiers of the armies of the United States, and all persons thereto attached, or in anywise thereto belonging; subject to military authority, charged with offenses for acts done in their military capacity, or pursuant to orders from proper military authority; and to protect from suit or prosecution all loyal citizens or persons charged with offenses done against the rebel forces, directly or indirectly, during the existence of the rebellion; and all persons, their agents and employés, charged with the occupancy of abandoned lands or plantations, or the possession or custody of any kind of property whatever, who occupied, used, possessed, or controlled the same, pursuant to the order of the President, or any of the civil or military departments of the Government, and to protect them from any penalties or damages that may have been or may be pronounced or adjudged in said courts in any of such cases; and also protecting colored persons from prosecutions, in any of said States, charged with offenses for which white persons are not prosecuted or punished in the same manner and degree.'"

Mr. Saulsbury having asked whether the Senator believed that General Grant or the President had any constitutional authority to make such an order as that, Mr. Trumbull replied: "I am very glad the Senator from Delaware has asked the question. I answer, he had most ample and complete authority. I indorse the order and every word of it. It would be monstrous if the officers and soldiers of the army and loyal citizens were to be subjected to suits and prosecutions for acts done in saving the republic, and that, too, at the hands of the very men who sought its destruction. Why, had not the Lieutenant-General authority to issue the order? Have not the civil tribunals in all the region of country to which order applies been expelled by armed rebels and traitors? Has not the power of the Government been overthrown there? Is it yet reëstablished? Some steps have been taken toward reëstablishing it under the authority of the military, and in no other way. If any of the State governments recently set up in the rebellious States were to undertake to embarrass military operations, I have no doubt they would at once be set aside by order of the Lieutenant-General, in pursuance of directions from the Executive. These governments which have been set up act by permission of the military. They are made use of, to some extent, to preserve peace and order and enforce civil rights between parties; and, so far as they act in harmony with the Constitution and laws of the United States and the orders of the military commanders, they are permitted to exercise authority; but until those States shall be restored in all their constitutional relations to the Union, they ought not to be permitted to exercise authority in any other way.

"I desire the Senator from Indiana to understand that it is under this war power that the authority of the Freedmen's Bureau is to be exercised. I do not claim that its officers can try persons for offenses without juries in States where the civil tribunals have not been interrupted by the rebellion. The Senator from Indiana argues against this bill as if it was applicable to that State. Some of its provisions are, but most of them are not, unless the State of Indiana has been in rebellion against the Government; and I know too many of the brave men who have gone from that State to maintain the integrity of the Union and put down the rebellion to cast any such imputation upon her. She is a loyal and a patriotic State; her civil government has never been usurped or overthrown by traitors, and the provisions of the seventh and eighth sections of the bill to which the Senator alludes can not, by their very terms, have any application to the State of Indiana. Let me read the concluding sentence of the eighth section:

"'The jurisdiction conferred by this section on the officers and agents of this bureau to cease and determine whenever, the discrimination on account of which it is conferred ceases, and in no event to be exercised in any State in which the ordinary course of judicial proceedings has not been interrupted by the rebellion, nor in any such State after said State shall have been fully restored in all its constitutional relations to the United States, and the courts of the State and of the United States within, the same are not disturbed or stopped in the peaceable course of justice.'