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Whatever the magnanimous spirit in which the judge made his charge, the judicial system rarely reflected it. Even the most conscientious jurists, who were able to reconcile their belief in white supremacy with a commitment to equal justice and protection for blacks, often had to confess their helplessness. Julius J. Fleming, for example, a magistrate and lawyer in Sumter, South Carolina, conceded that despite his best efforts, wrongs were inflicted upon freedmen “with absolute impunity,” few of them had the funds to meet litigation costs, and many of them were swindled out of legal claims to wages because they could not post the necessary bond as plaintiffs. “It is a stupendous wrong to emancipate & then desert them,” Fleming concluded. “The master’s interest was once their protection—but that is now gone. My interest in their behalf has not added to my business or popularity—but I care not.”131

Until the civil courts were thought to be ready to protect the legal rights of the freedmen, the provost courts (operating under military authority) and the Freedmen’s Bureau dispensed justice in the postwar South. While in many ways fairer toward the freedmen, the quality of that justice varied according to the competence and commitment of the particular officers and depended on their success in securing the cooperation of the Union Army to enforce their decisions. Like many such officials, John De Forest, a Freedmen’s Bureau agent in South Carolina, thought his primary obligation was to teach the whites to accord equal protection under the law to the freed slaves. “I so interpreted my orders as to believe that my first and great duty lay in raising the blacks and restoring the whites of my district to a confidence in civil law.” When Cato Allums, a freedman, shot and killed a white man in self-defense, De Forest permitted civil authorities to handle the case. But he followed their actions carefully, warned them that they were on trial as much as the freedman, and attempted in every way to protect Allums’ rights when he was indicted for murder. The refusal of several white witnesses to testify ultimately resulted in the dismissal of the indictment. De Forest hailed the outcome as “a triumph of justice, public conscience, and public sense” and a vindication of his decision to allow local whites to resume judicial power. Although grateful for his release, Allums resented his lengthy confinement and the expenses he incurred in his defense. Unlike De Forest, he deemed the outcome less than a triumph of white justice. “I never was treated like most niggers was,” he told De Forest. “Mighty few white men has tried to ride over Cato.” By 1866, in most sections of the South, civil courts had resumed their jurisdiction, although the Freedmen’s Bureau reserved the right to intervene if it thought blacks had been denied impartial justice. That it seldom did so revealed more about the predilections of Bureau officers than the impartiality of civil justice.132

After their initial experiences with the judicial system, many freedmen found little reason to place any confidence in it. The laws discriminated against them, the courts upheld a double standard of justice, and the police acted as the enforcers. Arrested often for the most trivial offenses (for which whites would rarely be apprehended), blacks found themselves in jail for months without a trial, denied the right to competent counsel (lawyers feared losing their white clients), charged exorbitant legal fees, and sentenced as much for their race as for the nature of their crime.133 Upon entering the town of Selma, Alabama, a northern journalist came across a gang of black prisoners at work in the street, each of them linked to the other by a long chain. Anxious to learn what they had done to deserve such “ignominious” punishment, he obtained a list of their crimes, the most serious of which was “using abusive language towards a white man”; the other offenses included disorderly conduct, vagrancy, petty theft, and selling farm produce within the town limits (the offender had been unable