WASHINGTON, D.C., _July 20, 1868_.
_To the Senate of the United States_:
I have given to the joint resolution entitled "A resolution excluding
from the electoral college the votes of States lately in rebellion which
shall not have been reorganized" as careful examination as I have been
able to bestow upon the subject during the few days that have intervened
since the measure was submitted for my approval.
Feeling constrained to withhold my consent, I herewith return the
resolution to the Senate, in which House it originated, with a brief
statement of the reasons which have induced my action. This joint
resolution is based upon the assumption that some of the States whose
inhabitants were lately in rebellion are not now entitled to
representation in Congress and participation in the election of
President and Vice-President of the United States.
Having heretofore had occasion to give in detail my reasons for
dissenting from this view, it is not necessary at this time to repeat
them. It is sufficient to state that I continue strong in my conviction
that the acts of secession, by which a number of the States sought to
dissolve their connection with the other States and to subvert the
Union, being unauthorized by the Constitution and in direct violation
thereof, were from the beginning absolutely null and void. It follows
necessarily that when the rebellion terminated the several States which
had attempted to secede continued to be States in the Union, and all
that was required to enable them to resume their relations to the Union
was that they should adopt the measures necessary to their practical
restoration as States. Such measures were adopted, and the legitimate
result was that those States, having conformed to all the requirements
of the Constitution, resumed their former relations, and became entitled
to the exercise of all the rights guaranteed to them by its provisions.
The joint resolution under consideration, however, seems to assume that
by the insurrectionary acts of their respective inhabitants those States
forfeited their rights as such, and can never again exercise them except
upon readmission into the Union on the terms prescribed by Congress.
If this position be correct, it follows that they were taken out of the
Union by virtue of their acts of secession, and hence that the war waged
upon them was illegal and unconstitutional. We would thus be placed in
this inconsistent attitude, that while the war was commenced and carried
on upon the distinct ground that the Southern States, being component
parts of the Union, were in rebellion against the lawful authority of
the United States, upon its termination we resort to a policy of
reconstruction which assumes that it was not in fact a rebellion, but
that the war was waged for the conquest of territories assumed to be
outside of the constitutional Union.
The mode and manner of receiving and counting the electoral votes
for President and Vice-President of the United States are in plain
and simple terms prescribed by the Constitution. That instrument
imperatively requires that "the President of the Senate shall, in the
presence of the Senate and House of Representatives, open all the
certificates, and the votes shall then be counted." Congress has,
therefore, no power, under the Constitution, to receive the electoral
votes or reject them. The whole power is exhausted when, in the presence
of the two Houses, the votes are counted and the result declared.
In this respect the power and duty of the President of the Senate are,
under the Constitution, purely ministerial. When, therefore, the joint
resolution declares that no electoral votes shall be received or counted
from States that since the 4th of March, 1867, have not "adopted a
constitution of State government under which a State government shall
have organized," a power is assumed which is nowhere delegated to
Congress, unless upon the assumption that the State governments
organized prior to the 4th of March, 1867, were illegal and void.
The joint resolution, by implication at least, concedes that these
States were States by virtue of their organization prior to the 4th of
March, 1867, but denies to them the right to vote in the election of
President and Vice-President of the United States. It follows either
that this assumption of power is wholly unauthorized by the Constitution
or that the States so excluded from voting were out of the Union by
reason of the rebellion, and have never been legitimately restored.
Being fully satisfied that they were never out of the Union, and that
their relations thereto have been legally and constitutionally restored,
I am forced to the conclusion that the joint resolution, which deprives
them of the right to have their votes for President and Vice-President
received and counted, is in conflict with the Constitution, and that
Congress has no more power to reject their votes than those of the
States which have been uniformly loyal to the Federal Union.
It is worthy of remark that if the States whose inhabitants were
recently in rebellion were legally and constitutionally organized and
restored to their rights prior to the 4th of March, 1867, as I am
satisfied they were, the only legitimate authority under which the
election for President and Vice-President can be held therein must be
derived from the governments instituted before that period. It clearly
follows that all the State governments organized in those States under
act of Congress for that purpose, and under military control, are
illegitimate and of no validity whatever; and in that view the votes
cast in those States for President and Vice-President, in pursuance
of acts passed since the 4th of March, 1867, and in obedience to the
so-called reconstruction acts of Congress, can not be legally received
and counted, while the only votes in those States that can be legally
cast and counted will be those cast in pursuance of the laws in force in
the several States prior to the legislation by Congress upon the subject
of reconstruction.
I can not refrain from directing your special attention to the
declaration contained in the joint resolution, that "none of the
States whose inhabitants were lately in rebellion shall be entitled to
representation in the electoral college," etc. If it is meant by this
declaration that no State is to be allowed to vote for President and
Vice-President _all_ of whose inhabitants were engaged in the late
rebellion, it is apparent that no one of the States will be excluded
from voting, since it is well known that in every Southern State there
were many inhabitants who not only did not participate in the rebellion,
but who actually took part in the suppression, or refrained from giving
it any aid or countenance. I therefore conclude that the true meaning of
the joint resolution is that no State a _portion_ of whose inhabitants
were engaged in the rebellion shall be permitted to participate in the
Presidential election, except upon the terms and conditions therein
prescribed.
Assuming this to be the true construction of the resolution, the
inquiry becomes pertinent, May those Northern States a portion of
whose inhabitants were actually in the rebellion be prevented, at the
discretion of Congress, from having their electoral votes counted? It is
well known that a portion of the inhabitants of New York and a portion
of the inhabitants of Virginia were alike engaged in the rebellion; yet
it is equally well known that Virginia, as well as New York, was at all
times during the war recognized by the Federal Government as a State
in the Union--so clearly that upon the termination of hostilities it
was not even deemed necessary for her restoration that a provisional
governor should be appointed; yet, according to this joint resolution,
the people of Virginia, unless they comply with the terms it prescribes,
are denied the right of voting for President, while the people of
New York, a portion of the inhabitants of which State were also in
rebellion, are permitted to have their electoral votes counted without
undergoing the process of reconstruction prescribed for Virginia. New
York is no more a State than Virginia; the one is as much entitled to
representation in the electoral college as the other. If Congress has
the power to deprive Virginia of this right, it can exercise the same
authority with respect to New York or any other of the States. Thus the
result of the Presidential election may be controlled and determined
by Congress, and the people be deprived of their right under the
Constitution to choose a President and Vice-President of the United
States.
If Congress were to provide by law that the votes of none of the States
should be received and counted if cast for a candidate who differed in
political sentiment with a majority of the two Houses, such legislation
would at once be condemned by the country as an unconstitutional and
revolutionary usurpation of power. It would, however, be exceedingly
difficult to find in the Constitution any more authority for the passage
of the joint resolution under consideration than for an enactment
looking directly to the rejection of all votes not in accordance with
the political preferences of a majority of Congress. No power exists
in the Constitution authorizing the joint resolution or the supposed
law--the only difference being that one would be more palpably
unconstitutional and revolutionary than the other. Both would rest upon
the radical error that Congress has the power to prescribe terms and
conditions to the right of the people of the States to cast their votes
for President and Vice-President.
For the reasons thus indicated I am constrained to return the joint
resolution to the Senate for such further action thereon as Congress
may deem necessary.