History of the Thirty-Ninth Congress of the United States

by William Horatio Barnes

"'And the President of the United States, through the War Department and the commissioner, shall extend military jurisdiction and protection over all employés, agents, and officers of this bureau in the exercise of the duties imposed or authorized by this act or the act to which this is additional.'

"Is not the difference manifest to every body between a bill that extends military jurisdiction over the officers and employés of the bureau and a bill which should extend military jurisdiction over all parts of the United States containing refugees and freedmen? This bill makes the Freedmen's Bureau a part of the War Department. It makes its officers and agents amenable to the Rules and Articles of War. But does that extend jurisdiction over the whole country where they are? How do they differ from any other portion of the army of the United States? The army of the United States, as every one knows, is governed by the Rules and Articles of War, wherever it may be, whether in Indiana or in Florida, and all persons in the army and a part of the military establishment are subject to these Rules and Articles of War; but did any body ever suppose that the whole country where they were was under military jurisdiction? If a company of soldiers are stationed at one of the forts in New York harbor, the officers and soldiers of that company are subject to military jurisdiction; but was it ever supposed that the people of the State of New York were thereby placed under military jurisdiction? It is an entire misapprehension of the provisions of the bill. It extends military jurisdiction nowhere; it merely places under jurisdiction the persons belonging to the Freedmen's Bureau who, nearly all of them, are now under military jurisdiction."

"The country," objected the President, "is to be divided into districts and sub-districts, and the number of salaried agents to be employed may be equal to the number of counties or parishes in all the States where freedmen and refugees are to be found."

Mr. Trumbull replied: "A single officer need not be employed other than those we now have. I have already stated that it is in the power and discretion of the President to detail from the army officers to perform all the duties of the Freedmen's Bureau, and, in case they are detailed, the bill provides that they shall serve without any additional compensation or allowance. But, sir, is it necessary, or was it ever contemplated, that there should be an officer or agent of the Freedmen's Bureau in every county and every parish where refugees and freedmen are to be found? By no means. What is the bill upon that subject? Does it make it imperative upon the President to appoint an agent in each county and parish? It authorizes him 'when the same shall be necessary for the operations of the bureau;' not otherwise. He has no authority, under the bill, to appoint a single agent unless it is necessary for the operations of the bureau, and then he can only appoint so many as may be needed. Sir, it never entered the mind, I venture to say, of a single advocate of this bill, that the President of the United States would so abuse the authority intrusted to him as to station an agent in every county in these States; but it was apprehended that there might be localities in some of these States where the prejudice and hostility of the white population and the former masters were such toward the negroes that it would be necessary to have an agent in every county in that locality for their protection; and, in order to give the President the necessary discretion where this should be requisite, the bill authorized, when it was necessary for the operations of the bureau, the appointment of an agent in each county or parish. In order to vest the President with sufficient power in some localities, it was necessary, legislating by general law, to give him much larger power than would be necessary in other localities.

"Sir, the country is not to be divided, I undertake to say, into districts and sub-districts unless the President of the United States finds it necessary to do so for the protection of these people; and if the law should be abused in that respect, it would be because he abused the discretion vested in him by Congress, and not because the law required it. It makes no such requirement."

"This military jurisdiction," said the President, "also extends to all questions that may arise respecting contracts."

"So far," replied Mr. Trumbull, "from extending this military jurisdiction over all questions arising concerning contracts, and so far from extending military jurisdiction anywhere, it is expressly provided, by the very terms of the bill, that no such jurisdiction shall be exercised except where the President himself has established, and is maintaining military jurisdiction, which he is now doing in eleven States; and the very moment that he ceases to maintain military jurisdiction, that very moment the military jurisdiction conferred over freedmen by this act ceases and terminates.

"Sir, the whole jurisdiction to try and dispose of cases by the officers and agents of the Freedmen's Bureau is expressly limited to the time when these States shall be restored to their constitutional relations, and when the courts of the United States and of the States are not interrupted nor interfered with in the peaceable course of justice. So far, then, from the bill establishing a military jurisdiction, upon which the Senator from Kentucky and other Senators have so much harped, it confers no jurisdiction to try cases one moment after the courts are restored, and are no longer interrupted in the peaceable administration of justice. Let me ask by what authority is it that military tribunals are sitting to-day at Alexandria, Virginia? By what authority is it that the writ of habeas corpus is suspended to-day in eleven States, when the Constitution of the United States says that the writ shall not be suspended except when, in cases of rebellion and invasion, the public safety may require it. By what authority does the President of the United States object to the exercise of military jurisdiction by that part of the army charged with the execution of the provisions of the Freedmen's Bureau when he exercises that military jurisdiction himself by other portions of the army? But a few days since a military commission was sitting in Alexandria, trying persons charged with crimes—and they are held all over the South—and yet that part of the army connected with the Freedmen's Bureau can not exercise any such authority because it is unconstitutional—unconstitutional to do by virtue of a law of Congress what is done without any law!

"Where does the Executive get the power? The Executive is but the Commander-in-chief of the armies, made so by the Constitution; but he can not raise an army or a single soldier, he can not appoint a single officer, without the consent of Congress. He can not make any rules and regulations for the government of the army without our permission. The Constitution of the United States declares, in so many words, that Congress shall have power 'to make rules for the government and regulation of the land and naval forces' of the United States. Can it be that that department of the Government, vested in express terms by the Constitution itself with authority to make rules for the government and regulation of the land and naval forces, has no authority to direct that portion of the land and naval forces employed in the Freedmen's Bureau to exercise this jurisdiction instead of department commanders? Sir, it is competent for Congress to declare that no department commanders shall exercise any such authority; it is competent for Congress to declare that a court-martial shall never sit, that a military commission shall never be held, and the President is as much bound to obey it as the humblest citizen in the land."

The President said: "The trials having their origin under this bill are to take place without the intervention of a jury, and without any fixed rules of law or evidence."