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THE FREEDMEN'S BUREAU ACT OF 1865 AND THE PRINCIPLE OF NO DISCRIMINATION ACCORDING TO COLOR Herman BeIz From the time Benjamin F. Butler issued his famous contraband order of May, 1861, that escaped slaves would be employed as military laborers, the Union government was engaged in attempts to deal with the results of emancipation. The culmination of these wartime efforts was the Freedmen's Bureau Act of March 3, 1865. Historically this measure has been best remembered for its provision assigning forty acres of land to every male freedman. Yet at the time of its passage it contained a civil rights dimension that was equally if not more important than its economic content. The result of two years of legislative deliberation on freedmen's affairs, it was intended to recognize the former slaves as freemen with ordinary civil rights. The principle of no discrimination according to color played a conspicuous part in the formation of the Freedmen's Bureau. Ironically, however, in the shaping of the 1865 act it was not Radicals with a reputation for being the special friends of the freedmen who insisted on this principle, but rather Republicans who sought to uphold the interest of loyal white refugees in the South. These same spokesmen for southern refugees were advocates, moreover, of laissez faire legal equality as a basic approach to the freedmen's question. Regarding the proposal for a permanent department of freedmen's affairs, advocated by Radicals, as an unwholesome and unsound form of guardianship, they believed that emancipated blacks should be recognized as freemen or citizens and, as the phrase had it, left severely alone to make their own labor arrangements and provide for themselves. How the famous civil rights principle of no distinction according to color was joined with laissez faire legal equality in creating the only federal agency that represented an institutional commitment to blacks in the Reconstruction era, forms the subject of this paper. Freedmen's bureau legislation took shape in the context of the government 's wartime policy toward emancipated slaves. Though varying in detail according to military command, as antislavery pressures and * Research for this article was supported by a grant from the American Bar Foundation . 197 198freedmen's bureau actual liberation increased in 1862 and 1863 this policy came to comprise three possible courses of action for the former slaves. They might choose voluntary colonization; seek employment as military laborers or agricultural workers on plantations leased under government authority ; or enlist as soldiers of the United States. The chief concerns of this policy were military and political: emancipated slaves coming within Union lines were to be kept from placing an excessive burden upon the army, were indeed now expected to contribute to the war effort . Through employment on the soil or in the ranks the freedmen would furthermore be kept from going North, where public opinion was uniformly fearful of large scale Negro immigration. Though not insubstantial, benefits for the freed blacks were a secondary consideration in this general approach to dealing with the results of emancipation .1 Although Congress helped to determine this policy, in 1863 many Republican lawmakers took a more critical view of it and began to seek alternatives that would promote more directly the interests of the freed people. In particular the idea of creating a federal agency exclusively for the purpose of assisting blacks in the transition from slavery to freedom gained in favor and was expressed in legislative proposals . The accomplishment of this end, however, involved two distinct considerations which in the opinion of many Republicans might be contradictory. On the one hand it seemed necessary to provide temporary support for the freed slaves and protect them against injury and hostile treatment, especially in the form of apprenticeship arrangements that might be merely de facto serfdom. On the other hand almost all Republicans desired to recognize the emancipated people as freemen with the same rights, responsibilities, and personal freedom as ordinary citizens, understanding, of course, that this did not entail political or social equality. While many Republicans had no difficulty in finding both of these purposes satisfactorily and compatibly expressed in the freedmen's bureau proposals that were introduced , others saw a...

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