[Footnote 28: Pocket veto. Was never sent to Congress, but was deposited
in the Department of State.]
[Footnote 29: Joint resolution placing certain troops of Missouri on an
equal footing with others as to bounties.]
WASHINGTON, D.C., _July 19, 1867_.
_To the House of Representatives of the United States_:
I return herewith the bill entitled "An act supplementary to an act
entitled 'An act to provide for the more efficient government of the
rebel States,' passed on the 2d day of March, 1867, and the act
supplementary thereto, passed, on the 23d day of March, 1867," and will
state as briefly as possible some of the reasons which prevent me from
giving it my approval.
This is one of a series of measures passed by Congress during the last
four months on the subject of reconstruction. The message returning the
act of the 2d of March last states at length my objections to the
passage of that measure. They apply equally well to the bill now before
me, and I am content merely to refer to them and to reiterate my
conviction that they are sound and unanswerable.
There are some points peculiar to this bill, which I will proceed at
once to consider.
The first section purports to declare "the true intent and meaning,"
in some particulars, of the two prior acts upon this subject.
It is declared that the intent of those acts was, first, that the
existing governments in the ten "rebel States" "were not legal State
governments," and, second, "that thereafter said governments, if
continued, were to be continued subject in all respects to the military
commanders of the respective districts and to the paramount authority
of Congress."
Congress may by a declaratory act fix upon a prior act a
construction altogether at variance with its apparent meaning, and
from the time, at least, when such a construction is fixed the original
act will be construed to mean exactly what it is stated to mean by the
declaratory statute. There will be, then, from the time this bill may
become a law no doubt, no question, as to the relation in which the
"existing governments" in those States, called in the original act "the
provisional governments," stand toward the military authority. As those
relations stood before the declaratory act, these "governments," it is
true, were made subject to absolute military authority in many important
respects, but not in all, the language of the act being "subject to the
military authority of the United States, as hereinafter prescribed."
By the sixth section of the original act these governments were made
"in all respects subject to the paramount authority of the United
States."
Now by this declaratory act it appears that Congress did not by the
original act intend to limit the military authority to any particulars
or subjects therein "prescribed," but meant to make it universal. Thus
over all of these ten States this military government is now declared to
have unlimited authority. It is no longer confined to the preservation
of the public peace, the administration of criminal law, the
registration of voters, and the superintendence of elections, but
"in all respects" is asserted to be paramount to the existing civil
governments.
It is impossible to conceive any state of society more intolerable than
this; and yet it is to this condition that 12,000,000 American citizens
are reduced by the Congress of the United States. Over every foot of the
immense territory occupied by these American citizens the Constitution
of the United States is theoretically in full operation. It binds all
the people there and should protect them; yet they are denied every
one of its sacred guaranties.
Of what avail will it be to any one of these Southern people when
seized by a file of soldiers to ask for the cause of arrest or for the
production of the warrant? Of what avail to ask for the privilege of
bail when in military custody, which knows no such thing as bail? Of
what avail to demand a trial by jury, process for witnesses, a copy of
the indictment, the privilege of counselor that greater privilege, the
writ of _habeas corpus_?
The veto of the original bill of the 2d of March was based on two
distinct grounds--the interference of Congress in matters strictly
appertaining to the reserved powers of the States and the establishment
of military tribunals for the trial of citizens in time of peace.
The impartial reader of that message will understand that all that
it contains with respect to military despotism and martial law has
reference especially to the fearful power conferred on the district
commanders to displace the criminal courts and assume jurisdiction to
try and to punish by military boards; that, potentially, the suspension
of the _habeas corpus_ was martial law and military despotism. The act
now before me not only declares that the intent was to confer such
military authority, but also to confer unlimited military authority over
all the other courts of the State and over all the officers of the
State--legislative, executive, and judicial. Not content with the
general grant of power, Congress, in the second section of this bill,
specifically gives to each military commander the power "to suspend or
remove from office, or from the performance of official duties and
the exercise of official powers, any officer or person holding or
exercising, or professing to hold or exercise, any civil or military
office or duty in such district under any power, election, appointment,
or authority derived from, or granted by, or claimed under any so-called
State, or the government thereof, or any municipal or other division
thereof."
A power that hitherto all the departments of the Federal Government,
acting in concert or separately, have not dared to exercise is here
attempted to be conferred on a subordinate military officer. To him,
as a military officer of the Federal Government, is given the power,
supported by "a sufficient military force," to remove every civil
officer of the State. What next? The district commander, who has thus
displaced the civil officer, is authorized to fill the vacancy by the
detail of an officer or soldier of the Army, or by the appointment of
"some other person."
This military appointee, whether an officer, a soldier, or "some
other person," is to perform "the duties of such officer or person so
suspended or removed." In other words, an officer or soldier of the Army
is thus transformed into a civil officer. He may be made a governor,
a legislator, or a judge. However unfit he may deem himself for such
civil duties, he must obey the order. The officer of the Army must, if
"detailed," go upon the supreme bench of the State with the same prompt
obedience as if he were detailed to go upon a court-martial. The
soldier, if detailed to act as a justice of the peace, must obey as
quickly as if he were detailed for picket duty.
What is the character of such a military civil officer? This bill
declares that he shall perform the duties of the civil office to which
he is detailed. It is clear, however, that he does not lose his position
in the military service. He is still an officer or soldier of the Army;
he is still subject to the rules and regulations which govern it, and
must yield due deference, respect, and obedience toward his superiors.
The clear intent of this section is that the officer or soldier
detailed to fill a civil office must execute its duties according to the
laws of the State. If he is appointed a governor of a State, he is to
execute the duties as provided by the laws of that State, and for the
time being his military character is to be suspended in his new civil
capacity. If he is appointed a State treasurer, he must at once assume
the custody and disbursement of the funds of the State, and must perform
those duties precisely according to the laws of the State, for he is
intrusted with no other official duty or other official power. Holding
the office of treasurer and intrusted with funds, it happens that he is
required by the State laws to enter into bond with security and to take
an oath of office; yet from the beginning of the bill to the end there
is no provision for any bond or oath of office, or for any single
qualification required under the State law, such as residence,
citizenship, or anything else. The only oath is that provided for in the
ninth section, by the terms of which everyone detailed or appointed to
any civil office in the State is required "to take and to subscribe the
oath of office prescribed by law for officers of the United States."
Thus an officer of the Army of the United States detailed to fill a
civil office in one of these States gives no official bond and takes
no official oath for the performance of his new duties, but as a civil
officer of the State only takes the same oath which he had already taken
as a military officer of the United States. He is, at last, a military
officer performing civil duties, and the authority under which he acts
is Federal authority only; and the inevitable result is that the Federal
Government, by the agency of its own sworn officers, in effect assumes
the civil government of the State.
A singular contradiction is apparent here. Congress declares these local
State governments to be illegal governments, and then provides that
these illegal governments shall be carried on by Federal officers, who
are to perform the very duties imposed on its own officers by this
illegal State authority. It certainly would be a novel spectacle if
Congress should attempt to carry on a _legal_ State government by the
agency of its own officers. It is yet more strange that Congress
attempts to sustain and carry on an _illegal_ State government by the
same Federal agency.
In this connection I must call attention to the tenth and eleventh
sections of the bill, which provide that none of the officers or
appointees of these military commanders "shall be bound in his action by
any opinion of any civil officer of the United States," and that all the
provisions of the act "shall be construed liberally, to the end that all
the intents thereof may be fully and perfectly carried out."
It seems Congress supposed that this bill might require construction,
and they fix, therefore, the rule to be applied. But where is the
construction to come from? Certainly no one can be more in want of
instruction than a soldier or an officer of the Army detailed for a
civil service, perhaps the most important in a State, with the duties of
which he is altogether unfamiliar. This bill says he shall not be bound
in his action by the opinion of any civil officer of the United States.
The duties of the office are altogether civil, but when he asks for an
opinion he can only ask the opinion of another military officer, who,
perhaps, understands as little of his duties as he does himself; and as
to his "action," he is answerable to the military authority, and to the
military authority alone. Strictly, no opinion of any civil officer
other than a judge has a binding force.
But these military appointees would not be bound even by a judicial
opinion. They might very well say, even when their action is in conflict
with the Supreme Court of the United States, "That court is composed of
civil officers of the United States, and we are not bound to conform our
action to any opinion of any such authority."
This bill and the acts to which it is supplementary are all founded upon
the assumption that these ten communities are not States and that their
existing governments are not legal. Throughout the legislation upon this
subject they are called "rebel States," and in this particular bill they
are denominated "so-called States," and the vice of illegality is
declared to pervade all of them. The obligations of consistency bind a
legislative body as well as the individuals who compose it. It is now
too late to say that these ten political communities are not States of
this Union. Declarations to the contrary made in these three acts are
contradicted again and again by repeated acts of legislation enacted by
Congress from the year 1861 to the year 1867.
During that period, while these States were in actual rebellion, and
after that rebellion was brought to a close, they have been again and
again recognized as States of the Union. Representation has been
apportioned to them as States. They have been divided into judicial
districts for the holding of district and circuit courts of the United
States, as States of the Union only can be districted. The last act on
this subject was passed July 23, 1866, by which every one of these ten
States was arranged into districts and circuits.
They have been called upon by Congress to act through their legislatures
upon at least two amendments to the Constitution of the United States.
As States they have ratified one amendment, which required the vote
of twenty-seven States of the thirty-six then composing the Union.
When the requisite twenty-seven votes were given in favor of that
amendment--seven of which votes were given by seven of these ten
States--it was proclaimed to be a part of the Constitution of the United
States, and slavery was declared no longer to exist within the United
States or any place subject to their jurisdiction. If these seven States
were not legal States of the Union, it follows as an inevitable
consequence that in some of the States slavery yet exists. It does not
exist in these seven States, for they have abolished it also in their
State constitutions; but Kentucky not having done so, it would still
remain in that State. But, in truth, if this assumption that these
States have no legal State governments be true, then the abolition of
slavery by these illegal governments binds no one, for Congress now
denies to these States the power to abolish slavery by denying to them
the power to elect a legal State legislature, or to frame a constitution
for any purpose, even for such a purpose as the abolition of slavery.
As to the other constitutional amendment, having reference to suffrage,
it happens that these States have not accepted it. The consequence is
that it has never been proclaimed or understood, even by Congress, to be
a part of the Constitution of the United States. The Senate of the
United States has repeatedly given its sanction to the appointment of
judges, district attorneys, and marshals for every one of these States;
yet, if they are not legal States, not one of these judges is authorized
to hold a court. So, too, both Houses of Congress have passed
appropriation bills to pay all these judges, attorneys, and officers of
the United States for exercising their functions in these States. Again,
in the machinery of the internal-revenue laws all these States are
districted, not as "Territories," but as "States."
So much for continuous legislative recognition. The instances cited,
however, fall far short of all that might be enumerated. Executive
recognition, as is well known, has been frequent and unwavering. The
same maybe said as to judicial recognition through the Supreme Court of
the United States. That august tribunal, from first to last, in the
administration of its duties _in banc_ and upon the circuit, has never
failed to recognize these ten communities as legal States of the Union.
The cases depending in that court upon appeal and writ of error from
these States when the rebellion began have not been dismissed upon any
idea of the cessation of jurisdiction. They were carefully continued
from term to term until the rebellion was entirely subdued and peace
reestablished, and then they were called for argument and consideration
as if no insurrection had intervened. New cases, occurring since the
rebellion, have come from these States before that court by writ of
error and appeal, and even by original suit, where only "a State" can
bring such a suit. These cases are entertained by that tribunal in the
exercise of its acknowledged jurisdiction, which could not attach to
them if they had come from any political body other than a State of the
Union. Finally, in the allotment of their circuits made by the judges at
the December term, 1865, every one of these States is put on the same
footing of legality with all the other States of the Union. Virginia
and North Carolina, being a part of the fourth circuit, are allotted to
the Chief Justice. South Carolina, Georgia, Alabama, Mississippi, and
Florida constitute the fifth circuit, and are allotted to the late Mr.
Justice Wayne. Louisiana, Arkansas, and Texas are allotted to the sixth
judicial circuit, as to which there is a vacancy on the bench.
The Chief Justice, in the exercise of his circuit duties, has recently
held a circuit court in the State of North Carolina. If North Carolina
is not a State of this Union, the Chief Justice had no authority to hold
a court there, and every order, judgment, and decree rendered by him in
that court were _coram non judice_ and void.
Another ground on which these reconstruction acts are attempted to be
sustained is this: That these ten States are conquered territory; that
the constitutional relation in which they stood as States toward the
Federal Government prior to the rebellion has given place to a new
relation; that their territory is a conquered country and their citizens
a conquered people, and that in this new relation Congress can govern
them by military power.
A title by conquest stands on clear ground; it is a new title acquired
by war; it applies only to territory; for goods or movable things
regularly captured in war are called "booty," or, if taken by individual
soldiers, "plunder."
There is not a foot of the land in any one of these ten States which
the United States holds by conquest, save only such land as did not
belong to either of these States or to any individual owner. I mean such
lands as did belong to the pretended government called the Confederate
States. These lands we may claim to hold by conquest. As to all other
land or territory, whether belonging to the States or to individuals,
the Federal Government has now no more title or right to it than
it had before the rebellion. Our own forts, arsenals, navy-yards,
custom-houses, and other Federal property situate in those States we
now hold, not by the title of conquest, but by our old title, acquired
by purchase or condemnation for public use, with compensation to
former owners. We have not conquered these places, but have simply
"repossessed" them.
If we require more sites for forts, custom-houses, or other public use,
we must acquire the title to them by purchase or appropriation in the
regular mode. At this moment the United States, in the acquisition of
sites for national cemeteries in these States, acquires title in the
same way. The Federal courts sit in court-houses owned or leased by the
United States, not in the court-houses of the States. The United States
pays each of these States for the use of its jails. Finally, the United
States levies its direct taxes and its internal revenue upon the
property in these States, including the productions of the lands within
their territorial limits, not by way of levy and contribution in the
character of a conqueror, but in the regular way of taxation, under the
same laws which apply to all the other States of the Union.
From first to last, during the rebellion and since, the title of each of
these States to the lands and public buildings owned by them has never
been disturbed, and not a foot of it has ever been acquired by the
United States, even under a title by confiscation, and not a foot of
it has ever been taxed under Federal law.
In conclusion I must respectfully ask the attention of Congress to the
consideration of one more question arising under this bill. It vests in
the military commander, subject only to the approval of the General of
the Army of the United States, an unlimited power to remove from office
any civil or military officer in each of these ten States, and the
further power, subject to the same approval, to detail or appoint any
military officer or soldier of the United States to perform the duties
of the officer so removed, and to fill all vacancies occurring in those
States by death, resignation, or otherwise.
The military appointee thus required to perform the duties of a
civil office according to the laws of the State, and, as such, required
to take an oath, is for the time being a civil officer. What is his
character? Is he a civil officer of the State or a civil officer of the
United States? If he is a civil officer of the State, where is the
Federal power under our Constitution which authorizes his appointment by
any Federal officer? If, however, he is to be considered a civil officer
of the United States, as his appointment and oath would seem to
indicate, where is the authority for his appointment vested by the
Constitution? The power of appointment of all officers of the United
States, civil or military, where not provided for in the Constitution,
is vested in the President, by and with the advice and consent of the
Senate, with this exception, that Congress "may by law vest the
appointment of such inferior officers as they think proper in the
President alone, in the courts of law, or in the heads of Departments."
But this bill, if these are to be considered inferior officers within
the meaning of the Constitution, does not provide for their appointment
by the President alone, or by the courts of law, or by the heads of
Departments, but vests the appointment in one subordinate executive
officer, subject to the approval of another subordinate executive
officer. So that, if we put this question and fix the character of this
military appointee either way, this provision of the bill is equally
opposed to the Constitution.
Take the case of a soldier or officer appointed to perform the office
of judge in one of these States, and, as such, to administer the
proper laws of the State. Where is the authority to be found in the
Constitution for vesting in a military or an executive officer strict
judicial functions to be exercised under State law? It has been again
and again decided by the Supreme Court of the United States that acts
of Congress which have attempted to vest _executive_ powers in the
_judicial_ courts or judges of the United States are not warranted by
the Constitution. If Congress can not clothe _a judge_ with merely
_executive_ duties, how can they clothe _an officer_ or _soldier_ of the
Army with _judicial_ duties over citizens of the United States who are
not in the military or naval service? So, too, it has been repeatedly
decided that Congress can not require a State officer, executive or
judicial, to perform any duty enjoined upon him by a law of the United
States. How, then, can Congress confer power upon an executive officer
of the United States to perform such duties in a State? If Congress
could not vest in a judge of one of these States any judicial authority
under the United States by direct enactment, how can it accomplish the
same thing indirectly, by removing the State judge and putting an
officer of the United States in his place?
To me these considerations are conclusive of the unconstitutionality
of this part of the bill now before me, and I earnestly commend their
consideration to the deliberate judgment of Congress.
Within a period less than a year the legislation of Congress has
attempted to strip the executive department of the Government of some
of its essential powers. The Constitution and the oath provided in it
devolve upon the President the power and duty to see that the laws are
faithfully executed. The Constitution, in order to carry out this power,
gives him the choice of the agents, and makes them subject to his
control and supervision. But in the execution of these laws the
constitutional obligation upon the President remains, but the power
to exercise that constitutional duty is effectually taken away. The
military commander is as to the power of appointment made to take the
place of the President, and the General of the Army the place of the
Senate; and any attempt on the part of the President to assert his own
constitutional power may, under pretense of law, be met by official
insubordination. It is to be feared that these military officers,
looking to the authority given by these laws rather than to the letter
of the Constitution, will recognize no authority but the commander of
the district and the General of the Army.
If there were no other objection than this to this proposed legislation,
it would be sufficient. Whilst I hold the chief executive authority of
the United States, whilst the obligation rests upon me to see that all
the laws are faithfully executed, I can never willingly surrender that
trust or the powers given for its execution. I can never give my assent
to be made responsible for the faithful execution of laws, and at the
same time surrender that trust and the powers which accompany it to any
other executive officer, high or low, or to any number of executive
officers. If this executive trust, vested by the Constitution in the
President, is to be taken from him and vested in a subordinate officer,
the responsibility will be with Congress in clothing the subordinate
with unconstitutional power and with the officer who assumes its
exercise.
This interference with the constitutional authority of the executive
department is an evil that will inevitably sap the foundations of our
federal system; but it is not the worst evil of this legislation. It is
a great public wrong to take from the President powers conferred on him
alone by the Constitution, but the wrong is more flagrant and more
dangerous when the powers so taken from the President are conferred upon
subordinate executive officers, and especially upon military officers.
Over nearly one-third of the States of the Union military power,
regulated by no fixed law, rules supreme. Each one of the five district
commanders, though not chosen by the people or responsible to them,
exercises at this hour more executive power, military and civil, than
the people have ever been willing to confer upon the head of the
executive department, though chosen by and responsible to themselves.
The remedy must come from the people themselves. They know what it is
and how it is to be applied. At the present time they can not, according
to the forms of the Constitution, repeal these laws; they can not remove
or control this military despotism. The remedy is, nevertheless, in
their hands; it is to be found in the ballot, and is a sure one if
not controlled by fraud, overawed by arbitrary power, or, from apathy
on their part, too long delayed. With abiding confidence in their
patriotism, wisdom, and integrity, I am still hopeful of the future, and
that in the end the rod of despotism will be broken, the armed heel of
power lifted from the necks of the people, and the principles of a
violated Constitution preserved.