ANDREW JOHNSON.

[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.

A Compilation of the Messages and Papers of the Presidents. Volume 6, part 2: Andrew Johnson · 第 432 / 803 题