The Union Army’s role in nation building shows the difficult task it faced in combating revanchist sentiment against the Thirtheenth, Fourteenth, and Fifteenth Amendments while also maintaining general law and order. (Photo courtesy of author)
Practice Notes
“Battle Cry of Freedom”
How Union Tribunals Promoted Civil Rights in the Reconstruction South
By Captain Henry R. Carras
Reconstruction was a unique time in American history. It is the only time since the Nation’s founding that a significant portion of U.S. territory came under the jurisdiction of U.S. military courts and tribunals.1 What is perhaps even more amazing is that these military tribunals enforced what we would today call Federal civil rights suits, attempting to ensure the postwar South upheld the ideals of the Fourteenth and Fifteenth Amendments.2 Reconstruction authorities often did this by charging individuals with “obstructing reconstruction” under the military tribunal system.3 The obstruction of reconstruction charges covered various types of discriminatory practices, from infringing upon “the rights in public conveyances” to “payment of poll taxes.”4
Background
Both before and after the Supreme Court’s decision in Ex parte Milligan, the Union Army exercised significant control over the judicial system in large parts of the country, including territories the Confederate government previously held as well as areas that had never seceded.5 The Supreme Court definitively ruled that military control in areas where Union civil government exists was unconstitutional in Ex parte Milligan.6 However, the Court never addressed this question in areas where the Confederacy had been the de facto government, and it eventually became moot when the Southern states were readmitted to the Union.7
Following the Civil War, the Federal Government broke up former Confederate territories into five military districts that the U.S. War Department controlled.8 Renowned commanders, such as Major General (MG) Philip Sheridan, MG Daniel Sickles, and Brigadier General John Pope ran these military departments.9 Within these departments, the commanders had control not only over the troops but also, effectively, over the entire civilian society within their jurisdiction.10 Indeed, the commanders’ control over society was so pervasive, the Supreme Court found in an 1872 case that “the orders . . . issued by the military commander . . . had the force and validity of law.”11 This included civilian criminal proceedings, which Congress empowered the military to oversee in the Reconstruction Act of 1867.12 The commissions tried offenses that local courts generally covered in peacetime: criminal conspiracy, rape, murder, burglary, and batteries.13
In addition to the military commissions, commanders also had the authority to convene other forms of courts, namely tribunals for carrying out certain civil functions.14 The range of offenses the tribunals covered was varied, including unlawfully providing alcohol to Soldiers and illegally purchasing military supplies and materiel from Soldiers.15 Additionally, these tribunals protected Reconstruction laws.16
Upon the conclusion of hostilities, the South was divided into five military districts as follows: 1) Virginia - under LTG John Schofield, 2) North Carolina and South Carolina - under MG Daniel Sickles, 3) Alabama, Florida, and Georgia - under BG John Pope, 4) Arkansas and Mississippi - under MG Edward Ord, 5) Louisiana and Texas - under MG Philip Sheridan. (Photo courtesy of author)
The Obstructing Reconstruction Charges
As mentioned above, an outcropping of this peculiar judicial system was a set of charges that criminalized any effort to obstruct Reconstruction.17 The Fourteenth and Fifteenth Amendments18 were the legal impetus behind these charges.
Union authorities’ main concern in upholding the Fourteenth and Fifteenth Amendments was to prevent restrictions on the right to vote based on an individual’s race or former status as an enslaved person.19 The main instrument that the Union used to carry out this task was proclamation by general orders. In the Second Military District, general orders specified that it was the “duty of the civil and military authorities in both [North Carolina and South Carolina] to secure every registered voter the full and free exercise of his right of suffrage, and this duty must be fully faithfully and impartially performed.”20
The Reconstruction authorities also attempted to protect the important freedom of access to transportation and movement. Major General Daniel Sickles issued General Order 32, which directed that “[i]n public conveyances, on railroads, highways, streets, or navigable waters, no discrimination because of color or caste shall be made.”21 The case of Miss Frances Rollin arose from this order.22 On 22 July 1867, the captain of the steam boat, Pilot Boy, refused to grant a first-class ticket to Miss Rollin, a Black woman, on account of her race.23 General Daniel Sickles issued an order with the legal backing of the Fourteenth Amendment, which found the captain, W.T. McNelty, guilty and required him to pay a substantial fine.24 The order specified, “Such disabilities and usages have ceased with slavery to have any legal sanction. Whatever belongs of common right to citizens, necessarily follows the recognition of the blacks as citizens and belongs to them.”25
Some of the general orders protected key rights within the justice process. For instance, the Third Military District’s General Order 4 demanded tribunals be free of discrimination based on “race, color, or political opinion.”26 General Orders 53 and 55 addressed the need for petit and grand juries to be populated with individuals from the “lists of voters, without discrimination.”27
The Union Army’s efforts to uphold equality under the law extended to many post-judicial considerations as well. For example, General Order 44 declared that “colored prisoners shall be entitled to receive food, the same quality and quantity, as may be furnished to the white prisoners.”28 Additionally, the same order called for the provision of the same “victualling” (money to provide for the imprisoned) to local sheriffs and jails for the care of “colored prisoner[s].”29 This latter part was essential for effectuating the former, and showed insight on the part of the Union Army on how inequality could creep into the postwar justice system.
The general orders also addressed many other key aspects of civil society. For instance, the Third Military District’s General Order 31 dealt with racial equality in the provision of support for the indigent and mentally disabled.30 In another instance, the Second Military District’s General Order 134 ordered equality in upholding parol (oral) contracts, regardless of the race of the parties to the contract.31
The Union Army also addressed the practice of taxing people of color on the basis of race under the guise of vagrancy laws.32 The Fourth Military District’s General Order 15, issued by General Edward Ord, stated, “[A]ll civil officers are forbidden to levy or collect any tax imposed upon freedmen or negroes as a class.”33
.jpg?ver=I2sZIXv9IeVIxZRsvdP5Ng%3d%3d "Oe-Miller Obstacle Course image")
CPT Hannah Miller (top left) and MSG Dale Oe (top right), OIC and NCOIC of a Fort Moore OSJA training event, reach the top of the Air Assault Obstacle Course after completing the rope climb as intern Jesse Weinberg begins his ascent.
Conclusion
While the passage of Jim Crow laws throughout the South may have swept away the long-term significance and effects of the military Government tribunals enforcing the obstruction of reconstruction charges, these obstruction cases were ahead of their time in addressing issues of civil rights and equality under the law.
It is difficult to believe such actions would have been possible if not for the powerful backing of the Union Army and its dedication to upholding many of the ideals espoused by President Lincoln and the spirit of the Fourteenth and Fifteenth Amendments. Viewed against the backdrop of history, it is hard not to be impressed by the time when the military justice system was forging the path on civil rights in the United States. TAL
CPT Carras is a special assistant U.S. attorney for XVIII Airborne Corps at Fort Liberty, North Carolina.
CPT Carras dedicates this article to his grandmother, Irmgard Carras, 1935-2024.
Notes
1. See Detlev F. Vagts, Military Commissions: The Forgotten Reconstruction Chapter, 23 Am. U. Int’l L. Rev. 231, 232–33 (2008).
2. See William Winthrop, Military Law and Precedents 858 (Gov’t Printing Off. 1920) (1896).
3. Vagts, supra note 1, at 260.
4. Winthrop, supra note 2, at 858.
5. See Vagts, supra note 1, at 239 (providing an overview of “[m]ilitary commissions during the Civil War,” demonstrating that many parts of the Union were attached to military jurisdiction in some form or another due to the necessities of the conflict); Ex parte Milligan, 71 U.S. 2 (1866).
6. 71 U.S. at 107 (finding the application of military courts when civilian courts are still functioning to be unconstitutional). The Supreme Court did find, however, that military tribunals were appropriate when civilian authority had been overthrown. Id. at 106–07.
7. Vagts, supra note 1, at 239–40 (providing a comprehensive history of the lifecycle of military commissions both during and after the Civil War).
8. Id. at 237, 244.
9. Id. at 237.
10. Winthrop, supra note 2, at 854–55 (defining various aspects of the military tribunal during Reconstruction).
11. Gates v. Johnson Co., 36 Tex. 144, 145 (1872).
12. An Act to Provide for the More Efficient Government of the Rebel States, §§ 3-4, 14 Stat. 428 (1867); see also Winthrop, supra note 2, at 848, 853.
13. Winthrop, supra note 2, at 854–55.
14. Id. at 855.
15. Id. at 855–56.
16. See id. at 856.
17. Vagts, supra note 1, at 260.
18. U.S. Const. amends. XIV, XV.
19. Vagts, supra note 1, at 260.
20. Headquarters, Second Mil. Dist., Gen. Orders No. 61 (6 Apr. 1868).
21. Headquarters, Second Mil. Dist., Gen. Orders No. 32 (30 May 1867).
22. Headquarters, Second Mil. Dist., Gen. Orders No. 74 (17 Aug. 1867).
23. Id.
24. Id.
25. Id.
26. Headquarters, Third Mil. Dist., Gen. Orders No. 4 (1868).
27. Headquarters, Third Mil. Dist., Gen. Orders No. 53 (19 Aug. 1867); see also Headquarters, Third Mil. Dist., Gen. Orders No. 55 (23 Aug. 1867) (clarifying that existing juries do not need to be redrawn after the issuance of General Orders No. 53).
28. Headquarters, Third Mil. Dist., Gen. Orders No. 44 (18 Mar. 1868).
29. Id.
30. Headquarters, Third Mil. Dist., Gen. Orders No. 31 (28 Feb. 1868).
31. Headquarters, Second Mil. Dist., Gen. Orders No. 134 (27 Nov. 1867).
32. See Headquarters, Fourth Mil. Dist., Gen. Orders No. 15 (27 June 1867).
33. Id.