WASHINGTON, _February 19, 1866_.
_To the Senate of the United States_:
I have examined with care the bill, which originated in the Senate and
has been passed by the two Houses of Congress, to amend an act entitled
"An act to establish a bureau for the relief of freedmen and refugees,"
and for other purposes. Having with much regret come to the conclusion
that it would not be consistent with the public welfare to give my
approval to the measure, I return the bill to the Senate with my
objections to its becoming a law.
I might call to mind in advance of these objections that there is no
immediate necessity for the proposed measure. The act to establish a
bureau for the relief of freedmen and refugees, which was approved in
the month of March last, has not yet expired. It was thought stringent
and extensive enough for the purpose in view in time of war. Before it
ceases to have effect further experience may assist to guide us to a
wise conclusion as to the policy to be adopted in time of peace.
I share with Congress the strongest desire to secure to the freedmen
the full enjoyment of their freedom and property and their entire
independence and equality in making contracts for their labor, but the
bill before me contains provisions which in my opinion are not warranted
by the Constitution and are not well suited to accomplish the end in
view.
The bill proposes to establish by authority of Congress military
jurisdiction over all parts of the United States containing refugees and
freedmen. It would by its very nature apply with most force to those
parts of the United States in which the freedmen most abound, and it
expressly extends the existing temporary jurisdiction of the Freedmen's
Bureau, with greatly enlarged powers, over those States "in which the
ordinary course of judicial proceedings has been interrupted by the
rebellion." The source from which this military jurisdiction is to
emanate is none other than the President of the United States, acting
through the War Department and the Commissioner of the Freedmen's
Bureau. The agents to carry out this military jurisdiction are to be
selected either from the Army or from civil life; the country is to be
divided into districts and subdistricts, and the number of salaried
agents to be employed may be equal to the number of counties or parishes
in all the United States where freedmen and refugees are to be found.
The subjects over which this military jurisdiction is to extend in every
part of the United States include protection to "all employees, agents,
and officers of this bureau in the exercise of the duties imposed" upon
them by the bill. In eleven States it is further to extend over all
cases affecting freedmen and refugees discriminated against "by local
law, custom, or prejudice." In those eleven States the bill subjects any
white person who may be charged with depriving a freedman of "any civil
rights or immunities belonging to white persons" to imprisonment or
fine, or both, without, however, defining the "civil rights and
immunities" which are thus to be secured to the freedmen by military
law. This military jurisdiction also extends to all questions that may
arise respecting contracts. The agent who is thus to exercise the office
of a military judge may be a stranger, entirely ignorant of the laws of
the place, and exposed to the errors of judgment to which all men are
liable. The exercise of power over which there is no legal supervision
by so vast a number of agents as is contemplated by the bill must, by
the very nature of man, be attended by acts of caprice, injustice, and
passion.
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. The rules on which offenses are to be "heard and determined"
by the numerous agents are such rules and regulations as the President,
through the War Department, shall prescribe. No previous presentment is
required nor any indictment charging the commission of a crime against
the laws; but the trial must proceed on charges and specifications. The
punishment will be, not what the law declares, but such as a
court-martial may think proper; and from these arbitrary tribunals there
lies no appeal, no writ of error to any of the courts in which the
Constitution of the United States vests exclusively the judicial power
of the country.
While the territory and the classes of actions and offenses that are
made subject to this measure are so extensive, the bill itself, should
it become a law, will have no limitation in point of time, but will form
a part of the permanent legislation of the country. I can not reconcile
a system of military jurisdiction of this kind with the words of the
Constitution which declare that "no person shall be held to answer
for a capital or otherwise infamous crime unless on a presentment or
indictment of a grand jury, except in cases arising in the land or naval
forces, or in the militia when in actual service in time of war or
public danger," and that "in all criminal prosecutions the accused shall
enjoy the right to a speedy and public trial by an impartial jury of the
State and district wherein the crime shall have been committed." The
safeguards which the experience and wisdom of ages taught our fathers
to establish as securities for the protection of the innocent, the
punishment of the guilty, and the equal administration of justice are
to be set aside, and for the sake of a more vigorous interposition in
behalf of justice we are to take the risks of the many acts of injustice
that would necessarily follow from an almost countless number of agents
established in every parish or county in nearly a third of the States of
the Union, over whose decisions there is to be no supervision or control
by the Federal courts. The power that would be thus placed in the hands
of the President is such as in time of peace certainly ought never to be
intrusted to any one man.
If it be asked whether the creation of such a tribunal within a State is
warranted as a measure of war, the question immediately presents itself
whether we are still engaged in war. Let us not unnecessarily disturb
the commerce and credit and industry of the country by declaring to the
American people and to the world that the United States are still in a
condition of civil war. At present there is no part of our country in
which the authority of the United States is disputed. Offenses that may
be committed by individuals should not work a forfeiture of the rights
of whole communities. The country has returned, or is returning, to a
state of peace and industry, and the rebellion is in fact at an end.
The measure, therefore, seems to be as inconsistent with the actual
condition of the country as it is at variance with the Constitution of
the United States.
If, passing from general considerations, we examine the bill in detail,
it is open to weighty objections.
In time of war it was eminently proper that we should provide for
those who were passing suddenly from a condition of bondage to a state
of freedom. But this bill proposes to make the Freedmen's Bureau,
established by the act of 1865 as one of many great and extraordinary
military measures to suppress a formidable rebellion, a permanent branch
of the public administration, with its powers greatly enlarged. I have
no reason to suppose, and I do not understand it to be alleged, that
the act of March, 1865, has proved deficient for the purpose for which
it was passed, although at that time and for a considerable period
thereafter the Government of the United States remained unacknowledged
in most of the States whose inhabitants had been involved in the
rebellion. The institution of slavery, for the military destruction of
which the Freedmen's Bureau was called into existence as an auxiliary,
has been already effectually and finally abrogated throughout the whole
country by an amendment of the Constitution of the United States, and
practically its eradication has received the assent and concurrence of
most of those States in which it at any time had an existence. I am not,
therefore, able to discern in the condition of the country anything to
justify an apprehension that the powers and agencies of the Freedmen's
Bureau, which were effective for the protection of freedmen and refugees
during the actual continuance of hostilities and of African servitude,
will now, in a time of peace and after the abolition of slavery, prove
inadequate to the same proper ends. If I am correct in these views,
there can be no necessity for the enlargement of the powers of the
Bureau, for which provision is made in the bill.
The third section of the bill authorizes a general and unlimited grant
of support to the destitute and suffering refugees and freedmen, their
wives and children. Succeeding sections make provision for the rent or
purchase of landed estates for freedmen, and for the erection for their
benefit of suitable buildings for asylums and schools, the expenses to
be defrayed from the Treasury of the whole people. The Congress of the
United States has never heretofore thought itself empowered to establish
asylums beyond the limits of the District of Columbia, except for the
benefit of our disabled soldiers and sailors. It has never founded
schools for any class of our own people, not even for the orphans of
those who have fallen in the defense of the Union, but has left the care
of education to the much more competent and efficient control of the
States, of communities, of private associations, and of individuals.
It has never deemed itself authorized to expend the public money for
the rent or purchase of homes for the thousands, not to say millions,
of the white race who are honestly toiling from day to day for their
subsistence. A system for the support of indigent persons in the United
States was never contemplated by the authors of the Constitution; nor
can any good reason be advanced why, as a permanent establishment,
it should be founded for one class or color of our people more than
another. Pending the war many refugees and freedmen received support
from the Government, but it was never intended that they should
thenceforth be fed, clothed, educated, and sheltered by the United
States. The idea on which the slaves were assisted to freedom was that
on becoming free they would be a self-sustaining population. Any
legislation that shall imply that they are not expected to attain a
self-sustaining condition must have a tendency injurious alike to their
character and their prospects.
The appointment of an agent for every county and parish will create an
immense patronage, and the expense of the numerous officers and their
clerks, to be appointed by the President, will be great in the
beginning, with a tendency steadily to increase. The appropriations
asked by the Freedmen's Bureau as now established, for the year 1866,
amount to $11,745,000. It may be safely estimated that the cost to be
incurred under the pending bill will require double that amount--more
than the entire sum expended in any one year under the Administration of
the second Adams. If the presence of agents in every parish and county
is to be considered as a war measure, opposition, or even resistance,
might be provoked; so that to give effect to their jurisdiction troops
would have to be stationed within reach of every one of them, and thus a
large standing force be rendered necessary. Large appropriations would
therefore be required to sustain and enforce military jurisdiction in
every county or parish from the Potomac to the Rio Grande. The condition
of our fiscal affairs is encouraging, but in order to sustain the
present measure of public confidence it is necessary that we practice
not merely customary economy, but, as far as possible, severe
retrenchment.
In addition to the objections already stated, the fifth section of the
bill proposes to take away land from its former owners without any
legal proceedings being first had, contrary to that provision of the
Constitution which declares that no person shall "be deprived of life,
liberty, or property without due process of law." It does not appear
that a part of the lands to which this section refers may not be owned
by minors or persons of unsound mind, or by those who have been faithful
to all their obligations as citizens of the United States. If any
portion of the land is held by such persons, it is not competent for
any authority to deprive them of it. If, on the other hand, it be found
that the property is liable to confiscation, even then it can not be
appropriated to public purposes until by due process of law it shall
have been declared forfeited to the Government.
There is still further objection to the bill, on grounds seriously
affecting the class of persons to whom it is designed to bring relief.
It will tend to keep the mind of the freedman in a state of uncertain
expectation and restlessness, while to those among whom he lives it will
be a source of constant and vague apprehension.
Undoubtedly the freedman should be protected, but he should be protected
by the civil authorities, especially by the exercise of all the
constitutional powers of the courts of the United States and of the
States. His condition is not so exposed as may at first be imagined.
He is in a portion of the country where his labor can not well be
spared. Competition for his services from planters, from those who
are constructing or repairing railroads, and from capitalists in his
vicinage or from other States will enable him to command almost his own
terms. He also possesses a perfect right to change his place of abode,
and if, therefore, he does not find in one community or State a mode of
life suited to his desires or proper remuneration for his labor, he can
move to another where that labor is more esteemed and better rewarded.
In truth, however, each State, induced by its own wants and interests,
will do what is necessary and proper to retain within its borders all
the labor that is needed for the development of its resources. The laws
that regulate supply and demand will maintain their force, and the wages
of the laborer will be regulated thereby. There is no danger that the
exceedingly great demand for labor will not operate in favor of the
laborer.
Neither is sufficient consideration given to the ability of the freedmen
to protect and take care of themselves. It is no more than justice to
them to believe that as they have received their freedom with moderation
and forbearance, so they will distinguish themselves by their industry
and thrift, and soon show the world that in a condition of freedom they
are self-sustaining, capable of selecting their own employment and
their own places of abode, of insisting for themselves on a proper
remuneration, and of establishing and maintaining their own asylums and
schools. It is earnestly hoped that instead of wasting away they will by
their own efforts establish for themselves a condition of respectability
and prosperity. It is certain that they can attain to that condition
only through their own merits and exertions.
In this connection the query presents itself whether the system proposed
by the bill will not, when put into complete operation, practically
transfer the entire care, support, and control of 4,000,000 emancipated
slaves to agents, overseers, or taskmasters, who, appointed at
Washington, are to be located in every county and parish throughout the
United States containing freedmen and refugees. Such a system would
inevitably tend to a concentration of power in the Executive which would
enable him, if so disposed, to control the action of this numerous class
and use them for the attainment of his own political ends.
I can not but add another very grave objection to this bill. The
Constitution imperatively declares, in connection with taxation, that
each State _shall_ have at least one Representative, and fixes the rule
for the number to which, in future times, each State shall be entitled.
It also provides that the Senate of the United States _shall_ be
composed of two Senators from each State, and adds with peculiar force
"that no State, without its consent, shall be deprived of its equal
suffrage in the Senate." The original act was necessarily passed in the
absence of the States chiefly to be affected, because their people were
then contumaciously engaged in the rebellion. Now the case is changed,
and some, at least, of those States are attending Congress by loyal
representatives, soliciting the allowance of the constitutional right
for representation. At the time, however, of the consideration and the
passing of this bill there was no Senator or Representative in Congress
from the eleven States which are to be mainly affected by its
provisions. The very fact that reports were and are made against the
good disposition of the people of that portion of the country is an
additional reason why they need and should have representatives of their
own in Congress to explain their condition, reply to accusations,
and assist by their local knowledge in the perfecting of measures
immediately affecting themselves. While the liberty of deliberation
would then be free and Congress would have full power to decide
according to its judgment, there could be no objection urged that the
States most interested had not been permitted to be heard. The principle
is firmly fixed in the minds of the American people that there should be
no taxation without representation. Great burdens have now to be borne
by all the country, and we may best demand that they shall be borne
without murmur when they are voted by a majority of the representatives
of all the people. I would not interfere with the unquestionable right
of Congress to judge, each House for itself, "of the elections, returns,
and qualifications of its own members;" but that authority can not be
construed as including the right to shut out in time of peace any State
from the representation to which it is entitled by the Constitution.
At present all the people of eleven States are excluded--those who
were most faithful during the war not less than others. The State of
Tennessee, for instance, whose authorities engaged in rebellion, was
restored to all her constitutional relations to the Union by the
patriotism and energy of her injured and betrayed people. Before the war
was brought to a termination they had placed themselves in relations
with the General Government, had established a State government of their
own, and, as they were not included in the emancipation proclamation,
they by their own act had amended their constitution so as to abolish
slavery within the limits of their State. I know no reason why the State
of Tennessee, for example, should not fully enjoy "all her
constitutional relations to the United States."
The President of the United States stands toward the country in
a somewhat different attitude from that of any member of Congress.
Each member of Congress is chosen from a single district or State;
the President is chosen by the people of all the States. As eleven
States are not at this time represented in either branch of Congress, it
would seem to be his duty on all proper occasions to present their just
claims to Congress. There always will be differences of opinion in the
community, and individuals may be guilty of transgressions of the law,
but these do not constitute valid objections against the right of a
State to representation. I would in no wise interfere with the
discretion of Congress with regard to the qualifications of members; but
I hold it my duty to recommend to you, in the interests of peace and the
interests of union, the admission of every State to its share in public
legislation when, however insubordinate, insurgent, or rebellious its
people may have been, it presents itself, not only in an attitude of
loyalty and harmony, but in the persons of representatives whose loyalty
can not be questioned under any existing constitutional or legal test.
It is plain that an indefinite or permanent exclusion of any part of the
country from representation must be attended by a spirit of disquiet and
complaint. It is unwise and dangerous to pursue a course of measures
which will unite a very large section of the country against another
section of the country, however much the latter may preponderate. The
course of emigration, the development of industry and business, and
natural causes will raise up at the South men as devoted to the Union as
those of any other part of the land; but if they are all excluded from
Congress, if in a permanent statute they are declared not to be in full
constitutional relations to the country, they may think they have cause
to become a unit in feeling and sentiment against the Government. Under
the political education of the American people the idea is inherent and
ineradicable that the consent of the majority of the whole people is
necessary to secure a willing acquiescence in legislation.
The bill under consideration refers to certain of the States as though
they had not "been fully restored in all their constitutional relations
to the United States." If they have not, let us at once act together to
secure that desirable end at the earliest possible moment. It is hardly
necessary for me to inform Congress that in my own judgment most of
those States, so far, at least, as depends upon their own action, have
already been fully restored, and are to be deemed as entitled to enjoy
their constitutional rights as members of the Union. Reasoning from the
Constitution itself and from the actual situation of the country, I feel
not only entitled but bound to assume that with the Federal courts
restored and those of the several States in the full exercise of their
functions the rights and interests of all classes of people will,
with the aid of the military in cases of resistance to the laws,
be essentially protected against unconstitutional infringement or
violation. Should this expectation unhappily fail, which I do not
anticipate, then the Executive is already fully armed with the powers
conferred by the act of March, 1865, establishing the Freedmen's Bureau,
and hereafter, as heretofore, he can employ the land and naval forces of
the country to suppress insurrection or to overcome obstructions to the
laws.
In accordance with the Constitution, I return the bill to the Senate,
in the earnest hope that a measure involving questions and interests so
important to the country will not become a law, unless upon deliberate
consideration by the people it shall receive the sanction of an
enlightened public judgment.