WASHINGTON, _March 2, 1867_.
_To the House of Representatives_:
I have examined the bill "to provide for the more efficient government
of the rebel States" with the care and anxiety which its transcendent
importance is calculated to awaken. I am unable to give it my assent,
for reasons so grave that I hope a statement of them may have some
influence on the minds of the patriotic and enlightened men with whom
the decision must ultimately rest.
The bill places all the people of the ten States therein named under the
absolute domination of military rulers; and the preamble undertakes to
give the reason upon which the measure is based and the ground upon
which it is justified. It declares that there exists in those States no
legal governments and no adequate protection for life or property, and
asserts the necessity of enforcing peace and good order within their
limits. Is this true as matter of fact?
It is not denied that the States in question have each of them
an actual government, with all the powers--executive, judicial, and
legislative--which properly belong to a free state. They are organized
like the other States of the Union, and, like them, they make,
administer, and execute the laws which concern their domestic affairs.
An existing _de facto_ government, exercising such functions as these,
is itself the law of the state upon all matters within its jurisdiction.
To pronounce the supreme law-making power of an established state
illegal is to say that law itself is unlawful.
The provisions which these governments have made for the preservation
of order, the suppression of crime, and the redress of private injuries
are in substance and principle the same as those which prevail in the
Northern States and in other civilized countries. They certainly have
not succeeded in preventing the commission of all crime, nor has this
been accomplished anywhere in the world. There, as well as elsewhere,
offenders sometimes escape for want of vigorous prosecution, and
occasionally, perhaps, by the inefficiency of courts or the prejudice of
jurors. It is undoubtedly true that these evils have been much increased
and aggravated, North and South, by the demoralizing influences of civil
war and by the rancorous passions which the contest has engendered. But
that these people are maintaining local governments for themselves which
habitually defeat the object of all government and render their own
lives and property insecure is in itself utterly improbable, and the
averment of the bill to that effect is not supported by any evidence
which has come to my knowledge. All the information I have on the
subject convinces me that the masses of the Southern people and those
who control their public acts, while they entertain diverse opinions
on questions of Federal policy, are completely united in the effort to
reorganize their society on the basis of peace and to restore their
mutual prosperity as rapidly and as completely as their circumstances
will permit.
The bill, however, would seem to show upon its face that the
establishment of peace and good order is not its real object. The fifth
section declares that the preceding sections shall cease to operate in
any State where certain events shall have happened. These events are,
first, the selection of delegates to a State convention by an election
at which negroes shall be allowed to vote; second, the formation of a
State constitution by the convention so chosen; third, the insertion
into the State constitution of a provision which will secure the right
of voting at all elections to negroes and to such white men as may
not be disfranchised for rebellion or felony; fourth, the submission
of the constitution for ratification to negroes and white men not
disfranchised, and its actual ratification by their vote; fifth, the
submission of the State constitution to Congress for examination and
approval, and the actual approval of it by that body; sixth, the
adoption of a certain amendment to the Federal Constitution by a vote
of the legislature elected under the new constitution; seventh, the
adoption of said amendment by a sufficient number of other States to
make it a part of the Constitution of the United States. All these
conditions must be fulfilled before the people of any of these States
can be relieved from the bondage of military domination; but when they
are fulfilled, then immediately the pains and penalties of the bill are
to cease, no matter whether there be peace and order or not, and without
any reference to the security of life or property. The excuse given for
the bill in the preamble is admitted by the bill itself not to be real.
The military rule which it establishes is plainly to be used, not for
any purpose of order or for the prevention of crime, but solely as
a means of coercing the people into the adoption of principles and
measures to which it is known that they are opposed, and upon which
they have an undeniable right to exercise their own judgment.
I submit to Congress whether this measure is not in its whole character,
scope, and object without precedent and without authority, in palpable
conflict with the plainest provisions of the Constitution, and utterly
destructive to those great principles of liberty and humanity for which
our ancestors on both sides of the Atlantic have shed so much blood and
expended so much treasure.
The ten States named in the bill are divided into five districts.
For each district an officer of the Army, not below the rank of a
brigadier-general, is to be appointed to rule over the people; and he
is to be supported with an efficient military force to enable him to
perform his duties and enforce his authority. Those duties and that
authority, as defined by the third section of the bill, are "to protect
all persons in their rights of person and property, to suppress
insurrection, disorder, and violence, and to punish or cause to be
punished all disturbers of the public peace or criminals." The power
thus given to the commanding officer over all the people of each
district is that of an absolute monarch. His mere will is to take the
place of all law. The law of the States is now the only rule applicable
to the subjects placed under his control, and that is completely
displaced by the clause which declares all interference of State
authority to be null and void. He alone is permitted to determine what
are rights of person or property, and he may protect them in such way as
in his discretion may seem proper. It places at his free disposal all
the lands and goods in his district, and he may distribute them without
let or hindrance to whom he pleases. Being bound by no State law, and
there being no other law to regulate the subject, he may make a criminal
code of his own; and he can make it as bloody as any recorded in
history, or he can reserve the privilege of acting upon the impulse of
his private passions in each case that arises. He is bound by no rules
of evidence; there is, indeed, no provision by which he is authorized or
required to take any evidence at all. Everything is a crime which he
chooses to call so, and all persons are condemned whom he pronounces to
be guilty. He is not bound to keep any record or make any report of his
proceedings. He may arrest his victims wherever he finds them, without
warrant, accusation, or proof of probable cause. If he gives them a
trial before he inflicts the punishment, he gives it of his grace and
mercy, not because he is commanded so to do.
To a casual reader of the bill it might seem that some kind of trial was
secured by it to persons accused of crime, but such is not the case.
The officer "may allow local civil tribunals to try offenders," but
of course this does not require that he shall do so. If any State or
Federal court presumes to exercise its legal jurisdiction by the trial
of a malefactor without his special permission, he can break it up and
punish the judges and jurors as being themselves malefactors. He can
save his friends from justice, and despoil his enemies contrary to
justice.
It is also provided that "he shall have power to organize military
commissions or tribunals:" but this power he is not commanded to
exercise. It is merely permissive, and is to be used only "when in his
judgment it may be necessary for the trial of offenders." Even if the
sentence of a commission were made a prerequisite to the punishment
of a party, it would be scarcely the slightest check upon the officer,
who has authority to organize it as he pleases, prescribe its mode of
proceeding, appoint its members from his own subordinates, and revise
all its decisions. Instead of mitigating the harshness of his single
rule, such a tribunal would be used much more probably to divide the
responsibility of making it more cruel and unjust.
Several provisions dictated by the humanity of Congress have
been inserted in the bill, apparently to restrain the power of the
commanding officer; but it seems to me that they are of no avail for
that purpose. The fourth section provides: First. That trials shall not
be unnecessarily delayed; but I think I have shown that the power is
given to punish without trial; and if so, this provision is practically
inoperative. Second. Cruel or unusual punishment is not to be inflicted;
but who is to decide what is cruel and what is unusual? The words have
acquired a legal meaning by long use in the courts. Can it be expected
that military officers will understand or follow a rule expressed in
language so purely technical and not pertaining in the least degree
to their profession? If not, then each officer may define cruelty
according to his own temper, and if it is not usual he will make it
usual. Corporal punishment, imprisonment, the gag, the ball and chain,
and all the almost insupportable forms of torture invented for military
punishment lie within the range of choice. Third. The sentence of
a commission is not to be executed without being approved by the
commander, if it affects life or liberty, and a sentence of death must
be approved by the President. This applies to cases in which there has
been a trial and sentence. I take it to be clear, under this bill, that
the military commander may condemn to death without even the form of a
trial by a military commission, so that the life of the condemned may
depend upon the will of two men instead of one.
It is plain that the authority here given to the military officer
amounts to absolute despotism. But to make it still more unendurable,
the bill provides that it may be delegated to as many subordinates as he
chooses to appoint, for it declares that he shall "punish or cause to be
punished." Such a power has not been wielded by any monarch in England
for more than five hundred years. In all that time no people who speak
the English language have borne such servitude. It reduces the whole
population of the ten States--all persons, of every color, sex, and
condition, and every stranger within their limits--to the most abject
and degrading slavery. No master ever had a control so absolute over the
slaves as this bill gives to the military officers over both white and
colored persons.
It may be answered to this that the officers of the Army are too
magnanimous, just, and humane to oppress and trample upon a subjugated
people. I do not doubt that army officers are as well entitled to this
kind of confidence as any other class of men. But the history of the
world has been written in vain if it does not teach us that unrestrained
authority can never be safely trusted in human hands. It is almost sure
to be more or less abused under any circumstances, and it has always
resulted in gross tyranny where the rulers who exercise it are strangers
to their subjects and come among them as the representatives of a
distant power, and more especially when the power that sends them is
unfriendly. Governments closely resembling that here proposed have been
fairly tried in Hungary and Poland, and the suffering endured by those
people roused the sympathies of the entire world. It was tried in
Ireland, and, though tempered at first by principles of English law,
it gave birth to cruelties so atrocious that they are never recounted
without just indignation. The French Convention armed its deputies with
this power and sent them to the southern departments of the Republic.
The massacres, murders, and other atrocities which they committed show
what the passions of the ablest men in the most civilized society will
tempt them to do when wholly unrestrained by law.
The men of our race in every age have struggled to tie up the hands
of their governments and keep them within the law, because their own
experience of all mankind taught them that rulers could not be relied
on to concede those lights which they were not legally bound to respect.
The head of a great empire has sometimes governed it with a mild and
paternal sway, but the kindness of an irresponsible deputy never yields
what the law does not extort from him. Between such a master and the
people subjected to his domination there can be nothing but enmity; he
punishes them if they resist his authority, and if they submit to it
he hates them for their servility.
I come now to a question which is, if possible, still more important.
Have we the power to establish and carry into execution a measure like
this? I answer, Certainly not, if we derive our authority from the
Constitution and if we are bound by the limitations which it imposes.
This proposition is perfectly clear, that no branch of the Federal
Government--executive, legislative, or judicial--can have any just
powers except those which it derives through and exercises under the
organic law of the Union. Outside of the Constitution we have no legal
authority more than private citizens, and within it we have only so
much as that instrument gives us. This broad principle limits all our
functions and applies to all subjects. It protects not only the citizens
of States which are within the Union, but it shields every human being
who comes or is brought under our jurisdiction. We have no right to do
in one place more than in another that which the Constitution says we
shall not do at all. If, therefore, the Southern States were in truth
out of the Union, we could not treat their people in a way which the
fundamental law forbids.
Some persons assume that the success of our arms in crushing the
opposition which was made in some of the States to the execution of the
Federal laws reduced those States and all their people--the innocent as
well as the guilty--to the condition of vassalage and gave us a power
over them which the Constitution does not bestow or define or limit.
No fallacy can be more transparent than this. Our victories subjected
the insurgents to legal obedience, not to the yoke of an arbitrary
despotism. When an absolute sovereign reduces his rebellious subjects,
he may deal with them according to his pleasure, because he had that
power before. But when a limited monarch puts down an insurrection, he
must still govern according to law. If an insurrection should take place
in one of our States against the authority of the State government and
end in the overthrow of those who planned it, would that take away the
rights of all the people of the counties where it was favored by a part
or a majority of the population? Could they for such a reason be wholly
outlawed and deprived of their representation in the legislature? I have
always contended that the Government of the United States was sovereign
within its constitutional sphere; that it executed its laws, like
the States themselves, by applying its coercive power directly to
individuals, and that it could put down insurrection with the same
effect as a State and no other. The opposite doctrine is the worst
heresy of those who advocated secession, and can not be agreed to
without admitting that heresy to be right.
Invasion, insurrection, rebellion, and domestic violence were
anticipated when the Government was framed, and the means of repelling
and suppressing them were wisely provided for in the Constitution; but
it was not thought necessary to declare that the States in which they
might occur should be expelled from the Union. Rebellions, which were
invariably suppressed, occurred prior to that out of which these
questions grow; but the States continued to exist and the Union remained
unbroken. In Massachusetts, in Pennsylvania, in Rhode Island, and in New
York, at different periods in our history, violent and armed opposition
to the United States was carried on; but the relations of those States
with the Federal Government were not supposed to be interrupted or
changed thereby after the rebellious portions of their population were
defeated and put down. It is true that in these earlier cases there was
no formal expression of a determination to withdraw from the Union, but
it is also true that in the Southern States the ordinances of secession
were treated by all the friends of the Union as mere nullities and are
now acknowledged to be so by the States themselves. If we admit that
they had any force or validity or that they did in fact take the States
in which they were passed out of the Union, we sweep from under our feet
all the grounds upon which we stand in justifying the use of Federal
force to maintain the integrity of the Government.
This is a bill passed by Congress in time of peace. There is not
in any one of the States brought under its operation either war or
insurrection. The laws of the States and of the Federal Government are
all in undisturbed and harmonious operation. The courts, State and
Federal, are open and in the full exercise of their proper authority.
Over every State comprised in these five military districts, life,
liberty, and property are secured by State laws and Federal laws, and
the National Constitution is everywhere in force and everywhere obeyed.
What, then, is the ground on which this bill proceeds? The title of the
bill announces that it is intended "for the more efficient government"
of these ten States. It is recited by way of preamble that no legal
State governments "nor adequate protection for life or property" exist
in those States, and that peace and good order should be thus enforced.
The first thing which arrests attention upon these recitals, which
prepare the way for martial law, is this, that the only foundation
upon which martial law can exist under our form of government is not
stated or so much as pretended. Actual war, foreign invasion, domestic
insurrection--none of these appear; and none of these, in fact, exist.
It is not even recited that any sort of war or insurrection is
threatened. Let us pause here to consider, upon this question of
constitutional law and the power of Congress, a recent decision of
the Supreme Court of the United States in _ex parte_ Milligan.