The Volokh Conspiracy - More on Reconstruction Judges

I've received an unexpected but gratifying outpouring of interest in my notion of a proper memorial for James Roswell Beckwith, the prosecutor-hero of my new book, The Day Freedom Died. I'll be trying to organize something appropriate in the months ahead.

It got me thinking: Beckwith is hardly the only Reconstruction-era figure whose efforts on behalf of racial justice have gone uncredited by history. This is not an accident, of course: the historiography of Reconstruction was dominated until the 1950s by apologists for the white supremacist South. The distortions were not limited to Birth of a Nation; nor were they produced only by southerners. William Archibald Dunning, a New Jerseyite who taught at Columbia, founded the "Dunning School" of anti-Reconstruction analysis.

It has taken decades to scrub American history clean of this wretched stuff. And as the obscurity of men like Beckwith demonstrates, there is still plenty of work to be done. One area that is especially ripe for revisionism is the reputation of Republican federal jurists of the era, including a triumvirate involved in the Colfax Massacre and other Klan-related cases.

My favorite is Hugh Lennox Bond, the first-ever United States judge for the 4th Circuit. A Marylander who opposed slavery before the Civil War in that most pro-slavery of Union states, Bond presided over the Ku Klux Klan trials in South Carolina in 1871 and 1872, shrewdly deflecting the defense's efforts to have the prosecution declared unconstitutional, even as he assured a fair trial for the accused. His reward for this is utter obscurity even in his home state. When I inquired with members of the state's current high court and a former dean of the state's principal law school, no one had even heard of him — whereas Roger Brooke Taney has a statue on the grounds of the state capitol in Annapolis.

Then there is Judge Edward H. Durell, a transplanted New Hampshireite who came to New Orleans decades before the war. A prolific writer, brilliant lawyer and progressive politician, he helped develop New Orleans' pathetic public infrastructure during the 1850s. As US district judge for Louisiana after the war, he was widely known as a fair and talented decider of cases — until the disputed 1872 state election, in which he ordered the rightfully elected Republican ticket seated. His action triggered a torrent of white supremacist calumny, including false accusations that he was an alcoholic or worse. Once the Democrats retook the US House in 1874, they moved to impeach Durell out of pure revenge; he was forced to resign and flee to New York. Alas, many of the falsehoods uttered about Durell became incorporated into the histories of those years, including (unintentionally, I'm sure) those written by revisionist historians.

Finally, a tip of the hat to William B. Woods, who presided over the Colfax Massacre trial as US judge for the 5th Circuit. The circuit courts were in their infancy in those days. They were not appellate courts as today, but rather an extra layer of trial courts designed by Congress in 1869 both to reduce Supreme Court circuit-riding and to create an alternative to Andrew Johnson's conservative District Court appointees in the South. Woods was a Democrat before the war, and served as speaker of the Ohio House, in which position he initially opposed Lincoln's war policies. But soon he switched to the Union side, and served with distinction as a general in the US Army.

After the war, Woods stayed in the South, settling in Mobile, Alabama. He was an honest and determined judge, who kept the Colfax trials fair, despite the pressure of the mobs swirling in New Orleans. Woods was privately convinced of the defendants' guilt, of course, and upheld Beckwith's indictments from legal challenge — until Justice Joseph Bradley popped down from Washington to undo the verdicts, and, with them, Woods' hard, dangerous work.

Woods became a member of the Supreme Court in early 1881 — Rutherford B. Hayes' last appointee. Alas, in this role he wrote the court's execrable opinion in US v. Harris. But, in his defense, it should probably be said that his hands were pretty much tied by this time — both legally and politically — by the court's previous decisions interpreting the Civil War amendments.

	[Charles Lane, guest-blogging, April 6, 2008 at 10:34pm] Trackbacks More on Reconstruction Judges I've received an unexpected but gratifying outpouring of interest in my notion of a proper memorial for James Roswell Beckwith, the prosecutor-hero of my new book, The Day Freedom Died. I'll be trying to organize something appropriate in the months ahead. It got me thinking: Beckwith is hardly the only Reconstruction-era figure whose efforts on behalf of racial justice have gone uncredited by history. This is not an accident, of course: the historiography of Reconstruction was dominated until the 1950s by apologists for the white supremacist South. The distortions were not limited to Birth of a Nation; nor were they produced only by southerners. William Archibald Dunning, a New Jerseyite who taught at Columbia, founded the "Dunning School" of anti-Reconstruction analysis. It has taken decades to scrub American history clean of this wretched stuff. And as the obscurity of men like Beckwith demonstrates, there is still plenty of work to be done. One area that is especially ripe for revisionism is the reputation of Republican federal jurists of the era, including a triumvirate involved in the Colfax Massacre and other Klan-related cases. My favorite is Hugh Lennox Bond, the first-ever United States judge for the 4th Circuit. A Marylander who opposed slavery before the Civil War in that most pro-slavery of Union states, Bond presided over the Ku Klux Klan trials in South Carolina in 1871 and 1872, shrewdly deflecting the defense's efforts to have the prosecution declared unconstitutional, even as he assured a fair trial for the accused. His reward for this is utter obscurity even in his home state. When I inquired with members of the state's current high court and a former dean of the state's principal law school, no one had even heard of him — whereas Roger Brooke Taney has a statue on the grounds of the state capitol in Annapolis. Then there is Judge Edward H. Durell, a transplanted New Hampshireite who came to New Orleans decades before the war. A prolific writer, brilliant lawyer and progressive politician, he helped develop New Orleans' pathetic public infrastructure during the 1850s. As US district judge for Louisiana after the war, he was widely known as a fair and talented decider of cases — until the disputed 1872 state election, in which he ordered the rightfully elected Republican ticket seated. His action triggered a torrent of white supremacist calumny, including false accusations that he was an alcoholic or worse. Once the Democrats retook the US House in 1874, they moved to impeach Durell out of pure revenge; he was forced to resign and flee to New York. Alas, many of the falsehoods uttered about Durell became incorporated into the histories of those years, including (unintentionally, I'm sure) those written by revisionist historians. Finally, a tip of the hat to William B. Woods, who presided over the Colfax Massacre trial as US judge for the 5th Circuit. The circuit courts were in their infancy in those days. They were not appellate courts as today, but rather an extra layer of trial courts designed by Congress in 1869 both to reduce Supreme Court circuit-riding and to create an alternative to Andrew Johnson's conservative District Court appointees in the South. Woods was a Democrat before the war, and served as speaker of the Ohio House, in which position he initially opposed Lincoln's war policies. But soon he switched to the Union side, and served with distinction as a general in the US Army. After the war, Woods stayed in the South, settling in Mobile, Alabama. He was an honest and determined judge, who kept the Colfax trials fair, despite the pressure of the mobs swirling in New Orleans. Woods was privately convinced of the defendants' guilt, of course, and upheld Beckwith's indictments from legal challenge — until Justice Joseph Bradley popped down from Washington to undo the verdicts, and, with them, Woods' hard, dangerous work. Woods became a member of the Supreme Court in early 1881 — Rutherford B. Hayes' last appointee. Alas, in this role he wrote the court's execrable opinion in US v. Harris. But, in his defense, it should probably be said that his hands were pretty much tied by this time — both legally and politically — by the court's previous decisions interpreting the Civil War amendments.