Part 76

ANDREW JOHNSON.

WASHINGTON, D.C., April 10, 1867.

The first session of the Fortieth Congress adjourned on the 30th day of March, 1867. This bill, which was passed during that session, was not presented for my approval by the Hon. Edmund G. Ross, of the Senate of the United States, and a member of the Committee on Enrolled Bills, until Monday, the 1st day of April, 1867, two days after the adjournment. It is not believed that the approval of any bill after the adjournment of Congress, whether presented before or after such adjournment, is authorized by the Constitution of the United States, that instrument expressly declaring that no bill shall become a law the return of which may have been prevented by the adjournment of Congress. To concede that under the Constitution the President, after the adjournment of Congress, may, without limitation in respect to time, exercise the power of approval, and thus determine at his discretion whether or not bills shall become laws, might subject the executive and legislative departments of the Government to influences most pernicious to correct legislation and sound public morals, and--with a single exception, occurring during the prevalence of civil war--would be contrary to the established practice of the Government from its inauguration to the present time. This bill will therefore be filed in the office of the Secretary of State without my approval.

ANDREW JOHNSON.

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."