A Compilation of the Messages and Papers of the Presidents
by
James D. Richardson
Part 6 out of 14
the seat of government of a free republic, and as a place of permanent
residence it would be avoided by all who prefer the blessings of liberty
to the mere emoluments of official position.
It should also be remembered that in legislating for the District of
Columbia under the Federal Constitution the relation of Congress to
its inhabitants is analogous to that of a legislature to the people
of a State under their own local constitution. It does not, therefore,
seem to be asking too much that in matters pertaining to the District
Congress should have a like respect for the will and interest of its
inhabitants as is entertained by a State legislature for the wishes
and prosperity of those for whom they legislate. The spirit of our
Constitution and the genius of our Government require that in regard to
any law which is to affect and have a permanent bearing upon a people
their will should exert at least a reasonable influence upon those who
are acting in the capacity of their legislators. Would, for instance,
the legislature of the State of New York, or of Pennsylvania, or of
Indiana, or of any State in the Union, in opposition to the expressed
will of a large majority of the people whom they were chosen to
represent, arbitrarily force upon them as voters all persons of the
African or negro race and make them eligible for office without any
other qualification than a certain term of residence within the State?
In neither of the States named would the colored population, when acting
together, be able to produce any great social or political result.
Yet in New York, before he can vote, the man of color must fulfill
conditions that are not required of the white citizen; in Pennsylvania
the elective franchise is restricted to white freemen, while in Indiana
negroes and mulattoes are expressly excluded from the right of suffrage.
It hardly seems consistent with the principles of right and justice that
representatives of States where suffrage is either denied the colored
man or granted to him on qualifications requiring intelligence or
property should compel the people of the District of Columbia to
try an experiment which their own constituents have thus far shown
an unwillingness to test for themselves. Nor does it accord with our
republican ideas that the principle of self-government should lose its
force when applied to the residents of the District merely because their
legislators are not, like those of the States, responsible through the
ballot to the people for whom they are the lawmaking power.
The great object of placing the seat of Government under the exclusive
legislation of Congress was to secure the entire independence of the
General Government from undue State influence and to enable it to
discharge without danger of interruption or infringement of its
authority the high functions for which it was created by the people.
For this important purpose it was ceded to the United States by Maryland
and Virginia, and it certainly never could have been contemplated
as one of the objects to be attained by placing it under the exclusive
jurisdiction of Congress that it would afford to propagandists or
political parties a place for an experimental test of their principles
and theories. While, indeed, the residents of the seat of Government are
not citizens of any State and are not, therefore, allowed a voice in the
electoral college or representation in the councils of the nation, they
are, nevertheless, American citizens, entitled as such to every guaranty
of the Constitution, to every benefit of the laws, and to every right
which pertains to citizens of our common country. In all matters, then,
affecting their domestic affairs, the spirit of our democratic form of
government demands that their wishes should be consulted and respected
and they taught to feel that although not permitted practically to
participate in national concerns, they are, nevertheless, under a
paternal government regardful of their rights, mindful of their wants,
and solicitous for their prosperity. It was evidently contemplated that
all local questions would be left to their decision, at least to an
extent that would not be incompatible with the object for which Congress
was granted exclusive legislation over the seat of Government. When the
Constitution was yet under consideration, it was assumed by Mr. Madison
that its inhabitants would be allowed "a municipal legislature for local
purposes, derived from their own suffrages." When for the first time
Congress, in the year 1800, assembled at Washington, President Adams, in
his speech at its opening, reminded the two Houses that it was for them
to consider whether the local powers over the District of Columbia,
vested by the Constitution in the Congress of the United States, should
be immediately exercised, and he asked them to "consider it as the
capital of a great nation, advancing with unexampled rapidity in arts,
in commerce, in wealth, and in population, and possessing within itself
those resources which, if not thrown away or lamentably misdirected,
would secure to it a long course of prosperity and self-government."
Three years had not elapsed when Congress was called upon to determine
the propriety of retroceding to Maryland and Virginia the jurisdiction
of the territory which they had respectively relinquished to the
Government of the United States. It was urged on the one hand that
exclusive jurisdiction was not necessary or useful to the Government;
that it deprived the inhabitants of the District of their political
rights; that much of the time of Congress was consumed in legislation
pertaining to it; that its government was expensive; that Congress was
not competent to legislate for the District, because the members were
strangers to its local concerns; and that it was an example of a
government without representation--an experiment dangerous to the
liberties of the States. On the other hand it was held, among other
reasons, and successfully, that the Constitution, the acts of cession
of Virginia and Maryland, and the act of Congress accepting the grant
all contemplated the exercise of exclusive legislation by Congress,
and that its usefulness, if not its necessity, was inferred from the
inconvenience which was felt for want of it by the Congress of the
Confederation; that the people themselves, who, it was said, had been
deprived of their political rights, had not complained and did not
desire a retrocession; that the evil might be remedied by giving them a
representation in Congress when the District should become sufficiently
populous, and in the meantime a local legislature; that if the
inhabitants had not political rights they had great political influence;
that the trouble and expense of legislating for the District would not
be great, but would diminish, and might in a great measure be avoided
by a local legislature; and that Congress could not retrocede the
inhabitants without their consent. Continuing to live substantially
under the laws that existed at the time of the cession, and such changes
only having been made as were suggested by themselves, the people of the
District have not sought by a local legislature that which has generally
been willingly conceded by the Congress of the nation.
As a general rule sound policy requires that the legislature should
yield to the wishes of a people, when not inconsistent with the
constitution and the laws. The measures suited to one community might
not be well adapted to the condition of another; and the persons best
qualified to determine such questions are those whose interests are
to be directly affected by any proposed law. In Massachusetts, for
instance, male persons are allowed to vote without regard to color,
provided they possess a certain degree of intelligence. In a population
in that State of 1,231,066 there were, by the census of 1860, only 9,602
persons of color, and of the males over 20 years of age there were
339,086 white to 2,602 colored. By the same official enumeration there
were in the District of Columbia 60,764 whites to 14,316 persons of the
colored race. Since then, however, the population of the District has
largely increased, and it is estimated that at the present time there
are nearly 100,000 whites to 30,000 negroes. The cause of the augmented
numbers of the latter class needs no explanation. Contiguous to Maryland
and Virginia, the District during the war became a place of refuge for
those who escaped from servitude, and it is yet the abiding place of a
considerable proportion of those who sought within its limits a shelter
from bondage. Until then held in slavery and denied all opportunities
for mental culture, their first knowledge of the Government was acquired
when, by conferring upon them freedom, it became the benefactor of their
race. The test of their capability for improvement began when for the
first time the career of free industry and the avenues to intelligence
were opened to them. Possessing these advantages but a limited time--the
greater number perhaps having entered the District of Columbia during
the later years of the war, or since its termination--we may well
pause to inquire whether, after so brief a probation, they are as a
class capable of an intelligent exercise of the right of suffrage and
qualified to discharge the duties of official position. The people
who are daily witnesses of their mode of living, and who have become
familiar with their habits of thought, have expressed the conviction
that they are not yet competent to serve as electors, and thus become
eligible for office in the local governments under which they live.
Clothed with the elective franchise, their numbers, already largely in
excess of the demand for labor, would be soon increased by an influx
from the adjoining States. Drawn from fields where employment is
abundant, they would in vain seek it here, and so add to the
embarrassments already experienced from the large class of idle persons
congregated in the District. Hardly yet capable of forming correct
judgments upon the important questions that often make the issues
of a political contest, they could readily be made subservient to the
purposes of designing persons. While in Massachusetts, under the census
of 1860, the proportion of white to colored males over 20 years of age
was 130 to 1, here the black race constitutes nearly one-third of the
entire population, whilst the same class surrounds the District on all
sides, ready to change their residence at a moment's notice, and with
all the facility of a nomadic people, in order to enjoy here, after a
short residence, a privilege they find nowhere else. It is within their
power in one year to come into the District in such numbers as to have
the supreme control of the white race, and to govern them by their own
officers and by the exercise of all the municipal authority--among
the rest, of the power of taxation over property in which they have
no interest. In Massachusetts, where they have enjoyed the benefits
of a thorough educational system, a qualification of intelligence
is required, while here suffrage is extended to all without
discrimination--as well to the most incapable who can prove a
residence in the District of one year as to those persons of color who,
comparatively few in number, are permanent inhabitants, and, having
given evidence of merit and qualification, are recognized as useful and
responsible members of the community. Imposed upon an unwilling people
placed by the Constitution under the exclusive legislation of Congress,
it would be viewed as an arbitrary exercise of power and as an
indication by the country of the purpose of Congress to compel the
acceptance of negro suffrage by the States. It would engender a feeling
of opposition and hatred between the two races, which, becoming deep
rooted and ineradicable, would prevent them from living together in
a state of mutual friendliness. Carefully avoiding every measure that
might tend to produce such a result, and following the clear and
well-ascertained popular will, we should assiduously endeavor to promote
kindly relations between them, and thus, when that popular will leads
the way, prepare for the gradual and harmonious introduction of this
new element into the political power of the country.
It can not be urged that the proposed extension of suffrage in the
District of Columbia is necessary to enable persons of color to protect
either their interests or their rights. They stand here precisely as
they stand in Pennsylvania, Ohio, and Indiana. Here as elsewhere, in all
that pertains to civil rights, there is nothing to distinguish this
class of persons from citizens of the United States, for they possess
the "full and equal benefit of all laws and proceedings for the security
of person and property as is enjoyed by white citizens," and are made
"subject to like punishment, pains, and penalties, and to none other,
any law, statute, ordinance, regulation, or custom to the contrary
notwithstanding." Nor, as has been assumed, are their suffrages
necessary to aid a loyal sentiment here, for local governments already
exist of undoubted fealty to the Government, and are sustained by
communities which were among the first to testify their devotion to the
Union, and which during the struggle furnished their full quotas of men
to the military service of the country.
The exercise of the elective franchise is the highest attribute of an
American citizen, and when guided by virtue, intelligence, patriotism,
and a proper appreciation of our institutions constitutes the true basis
of a democratic form of government, in which the sovereign power is
lodged in the body of the people. Its influence for good necessarily
depends upon the elevated character and patriotism of the elector, for
if exercised by persons who do not justly estimate its value and who are
indifferent as to its results it will only serve as a means of placing
power in the hands of the unprincipled and ambitious, and must eventuate
in the complete destruction of that liberty of which it should be the
most powerful conservator. Great danger is therefore to be apprehended
from an untimely extension of the elective franchise to any new class
in our country, especially when the large majority of that class, in
wielding the power thus placed in their hands, can not be expected
correctly to comprehend the duties and responsibilities which pertain
to suffrage. Yesterday, as it were, 4,000,000 persons were held in a
condition of slavery that had existed for generations; to-day they are
freemen and are assumed by law to be citizens. It can not be presumed,
from their previous condition of servitude, that as a class they are as
well informed as to the nature of our Government as the intelligent
foreigner who makes our land the home of his choice. In the case of
the latter neither a residence of five years and the knowledge of our
institutions which it gives nor attachment to the principles of the
Constitution are the only conditions upon which he can be admitted to
citizenship; he must prove in addition a good moral character, and thus
give reasonable ground for the belief that he will be faithful to the
obligations which he assumes as a citizen of the Republic. Where a
people--the source of all political power--speak by their suffrages
through the instrumentality of the ballot box, it must be carefully
guarded against the control of those who are corrupt in principle and
enemies of free institutions, for it can only become to our political
and social system a safe conductor of healthy popular sentiment when
kept free from demoralizing influences. Controlled through fraud and
usurpation by the designing, anarchy and despotism must inevitably
follow.
In the hands of the patriotic and worthy our Government will be
preserved upon the principles of the Constitution inherited from our
fathers. It follows, therefore, that in admitting to the ballot box
a new class of voters not qualified for the exercise of the elective
franchise we weaken our system of government instead of adding to its
strength and durability.
In returning this bill to the Senate I deeply regret that there should
be any conflict of opinion between the legislative and executive
departments of the Government in regard to measures that vitally affect
the prosperity and peace of the country. Sincerely desiring to reconcile
the States with one another and the whole people to the Government of
the United States, it has been my earnest wish to cooperate with
Congress in all measures having for their object a proper and complete
adjustment of the questions resulting from our late civil war. Harmony
between the coordinate branches of the Government, always necessary for
the public welfare, was never more demanded than at the present time,
and it will therefore be my constant aim to promote as far as possible
concert of action between them. The differences of opinion that have
already occurred have rendered me only the more cautious, lest the
Executive should encroach upon any of the prerogatives of Congress,
or by exceeding in any manner the constitutional limit of his duties
destroy the equilibrium which should exist between the several
coordinate departments, and which is so essential to the harmonious
working of the Government. I know it has been urged that the executive
department is more likely to enlarge the sphere of its action than
either of the other two branches of the Government, and especially in
the exercise of the veto power conferred upon it by the Constitution. It
should be remembered, however, that this power is wholly negative and
conservative in its character, and was intended to operate as a check
upon unconstitutional, hasty, and improvident legislation and as a means
of protection against invasions of the just powers of the executive and
judicial departments. It is remarked by Chancellor Kent that--
To enact laws is a transcendent power, and if the body that possesses
it be a full and equal representation of the people there is danger of
its pressing with destructive weight upon all the other parts of the
machinery of Government. It has therefore been thought necessary by the
most skillful and most experienced artists in the science of civil
polity that strong barriers should be erected for the protection and
security of the other necessary powers of the Government. Nothing has
been deemed more fit and expedient for the purpose than the provision
that the head of the executive department should be so constituted as
to secure a requisite share of independence and that he should have a
negative upon the passing of laws; and that the judiciary power, resting
on a still more permanent basis, should have the right of determining
upon the validity of laws by the standard of the Constitution.
The necessity of some such check in the hands of the Executive is shown
by reference to the most eminent writers upon our system of government,
who seem to concur in the opinion that encroachments are most to be
apprehended from the department in which all legislative powers are
vested by the Constitution. Mr. Madison, in referring to the difficulty
of providing some practical security for each against the invasion of
the others, remarks that "the legislative department is everywhere
extending the sphere of its activity and drawing all power into its
impetuous vortex." "The founders of our Republic * * * seem never to
have recollected the danger from legislative usurpations, which by
assembling all power in the same hands must lead to the same tyranny as
is threatened by Executive usurpations." "In a representative republic,
where the executive magistracy is carefully limited both in the extent
and the duration of its power, and where the legislative power is
exercised by an assembly which is inspired, by a supposed influence over
the people, with an intrepid confidence in its own strength, which
is sufficiently numerous to feel all the passions which actuate a
multitude, yet not so numerous as to be incapable of pursuing the
objects of its passions by means which reason prescribes, it is against
the enterprising ambition of this department that the people ought to
indulge all their jealousy and exhaust all their precautions." "The
legislative department derives a superiority in our governments from
other circumstances. Its constitutional powers being at once more
extensive and less susceptible of precise limits, it can with the
greater facility mask, under complicated and indirect measures, the
encroachments which it makes on the coordinate departments." "On the
other side, the Executive power being restrained within a narrower
compass and being more simple in its nature, and the judiciary being
described by landmarks still less uncertain, projects of usurpation
by either of these departments would immediately betray and defeat
themselves. Nor is this all. As the legislative department alone has
access to the pockets of the people and has in some constitutions full
discretion and in all a prevailing influence over the pecuniary rewards
of those who fill the other departments, a dependence is thus created in
the latter which gives still greater facility to encroachments of the
former." "We have seen that the tendency of republican governments is
to an aggrandizement of the legislative at the expense of the other
departments."
Mr. Jefferson, in referring to the early constitution of
Virginia, objected that by its provisions all the powers of
government--legislative, executive, and judicial--resulted to the
legislative body, holding that "the concentrating these in the same
hands is precisely the definition of despotic government. It will be no
alleviation that these powers will be exercised by a plurality of hands,
and not by a single one. One hundred and seventy-three despots would
surely be as oppressive as one." "As little will it avail us that they
are chosen by ourselves. An elective despotism was not the government we
fought for, but one which should not only be founded on free principles,
but in which the powers of government should be so divided and balanced
among several bodies of magistracy as that no one could transcend their
legal limits without being effectually checked and restrained by the
others. For this reason that convention which passed the ordinance of
government laid its foundation on this basis, that the legislative,
executive, and judicial departments should be separate and distinct,
so that no person should exercise the powers of more than one of them
at the same time. But no barrier was provided between these several
powers. The judiciary and executive members were left dependent on the
legislative for their subsistence in office, and some of them for their
continuance in it. If, therefore, the legislature assumes executive and
judiciary powers, no opposition is likely to be made, nor, if made, can
be effectual, because in that case they may put their proceedings into
the form of an act of assembly, which will render them obligatory on the
other branches. They have accordingly in many instances decided rights
which should have been left to judiciary controversy; and the direction
of the executive, during the whole time of their session, is becoming
habitual and familiar."
Mr. Justice Story, in his Commentaries on the Constitution, reviews the
same subject, and says:
The truth is that the legislative power is the great and overruling
power in every free government. * * * The representatives of the people
will watch with jealousy every encroachment of the executive magistrate,
for it trenches upon their own authority. But who shall watch the
encroachment of these representatives themselves? Will they be as
jealous of the exercise of power by themselves as by others? * * *
There are many reasons which may be assigned for the engrossing
influence of the legislative department. In the first place, its
constitutional powers are more extensive, and less capable of being
brought within precise limits than those of either the other
departments. The bounds of the executive authority are easily marked
out and defined. It reaches few objects, and those are known. It can
not transcend them without being brought in contact with the other
departments. Laws may check and restrain and bound its exercise. The
same remarks apply with still greater force to the judiciary. The
jurisdiction is, or may be, bounded to a few objects or persons; or,
however general and unlimited, its operations are necessarily confined
to the mere administration of private and public justice. It can not
punish without law. It can not create controversies to act upon. It can
decide only upon rights and cases as they are brought by others before
it. It can do nothing for itself. It must do everything for others. It
must obey the laws, and if it corruptly administers them it is subjected
to the power of impeachment. On the other hand, the legislative power
except in the few cases of constitutional prohibition, is unlimited. It
is forever varying its means and its ends. It governs the institutions
and laws and public policy of the country. It regulates all its vast
interests. It disposes of all its property. Look but at the exercise
of two or three branches of its ordinary powers. It levies all taxes;
it directs and appropriates all supplies; it gives the rules for the
descent, distribution, and devises of all property held by individuals;
it controls the sources and the resources of wealth; it changes at its
will the whole fabric of the laws; it molds at its pleasure almost all
the institutions which give strength and comfort and dignity to society.
In the next place, it is the direct visible representative of the will
of the people in all the changes of times and circumstances. It has the
pride as well as the power of numbers. It is easily moved and steadily
moved by the strong impulses of popular feeling and popular odium. It
obeys without reluctance the wishes and the will of the majority for the
time being. The path to public favor lies open by such obedience, and it
finds not only support but impunity in whatever measures the majority
advises, even though they transcend the constitutional limits. It has no
motive, therefore, to be jealous or scrupulous in its own use of power;
and it finds its ambition stimulated and its arm strengthened by the
countenance and the courage of numbers. These views are not alone those
of men who look with apprehension upon the fate of republics, but they
are also freely admitted by some of the strongest advocates for popular
rights and the permanency of republican institutions. * * *
* * * * *
* * * Each department should have a will of its own. * * * Each should
have its own independence secured beyond the power of being taken away
by either or both of the others. But at the same time the relations of
each to the other should be so strong that there should be a mutual
interest to sustain and protect each other. There should not only be
constitutional means, but personal motives to resist encroachments of
one or either of the others. Thus ambition would be made to counteract
ambition, the desire of power to check power, and the pressure of
interest to balance an opposing interest.
* * * * *
* * * The judiciary is naturally and almost necessarily, as has been
already said, the weakest department. It can have no means of influence
by patronage. Its powers can never be wielded for itself. It has no
command over the purse or the sword of the nation. It can neither lay
taxes, nor appropriate money, nor command armies, nor appoint to office.
It is never brought into contact with the people by constant appeals and
solicitations and private intercourse, which belong to all the other
departments of Government. It is seen only in controversies or in trials
and punishments. Its rigid justice and impartiality give it no claims to
favor, however they may to respect. It stands solitary and unsupported,
except by that portion of public opinion which is interested only in the
strict administration of justice. It can rarely secure the sympathy or
zealous support either of the Executive or the Legislature. If they
are not, as is not unfrequently the case, jealous of its prerogatives,
the constant necessity of scrutinizing the acts of each, upon the
application of any private person, and the painful duty of pronouncing
judgment that these acts are a departure from the law or Constitution
can have no tendency to conciliate kindness or nourish influence. It
would seem, therefore, that some additional guards would, under the
circumstances, be necessary to protect this department from the absolute
dominion of the others. Yet rarely have any such guards been applied,
and every attempt to introduce them has been resisted with a pertinacity
which demonstrates how slow popular leaders are to introduce checks upon
their own power and how slow the people are to believe that the
judiciary is the real bulwark of their liberties. * * *
* * * * *
* * * If any department of the Government has undue influence or
absorbing power, it certainly has not been the executive or judiciary.
In addition to what has been said by these distinguished writers,
it may also be urged that the dominant party in each House may, by the
expulsion of a sufficient number of members or by the exclusion from
representation of a requisite number of States, reduce the minority to
less than one-third. Congress by these means might be enabled to pass a
law, the objections of the President to the contrary notwithstanding,
which would render impotent the other two departments of the Government
and make inoperative the wholesome and restraining power which it was
intended by the framers of the Constitution should be exerted by them.
This would be a practical concentration of all power in the Congress
of the United States; this, in the language of the author of the
Declaration of Independence, would be "precisely the definition of
despotic government."
I have preferred to reproduce these teachings of the great statesmen
and constitutional lawyers of the early and later days of the Republic
rather than to rely simply upon an expression of my own opinions.
We can not too often recur to them, especially at a conjuncture like
the present. Their application to our actual condition is so apparent
that they now come to us a living voice, to be listened to with more
attention than at any previous period of our history. We have been and
are yet in the midst of popular commotion. The passions aroused by a
great civil war are still dominant. It is not a time favorable to that
calm and deliberate judgment which is the only safe guide when radical
changes in our institutions are to be made. The measure now before me is
one of those changes. It initiates an untried experiment for a people
who have said, with one voice, that it is not for their good. This alone
should make us pause, but it is not all. The experiment has not been
tried, or so much as demanded, by the people of the several States for
themselves. In but few of the States has such an innovation been allowed
as giving the ballot to the colored population without any other
qualification than a residence of one year, and in most of them the
denial of the ballot to this race is absolute and by fundamental law
placed beyond the domain of ordinary legislation. In most of those
States the evil of such suffrage would be partial, but, small as it
would be, it is guarded by constitutional barriers. Here the innovation
assumes formidable proportions, which may easily grow to such an extent
as to make the white population a subordinate element in the body
politic.
After full deliberation upon this measure, I can not bring myself to
approve it, even upon local considerations, nor yet as the beginning of
an experiment on a larger scale. I yield to no one in attachment to that
rule of general suffrage which distinguishes our policy as a nation.
But there is a limit, wisely observed hitherto, which makes the ballot
a privilege and a trust, and which requires of some classes a time
suitable for probation and preparation. To give it indiscriminately to
a new class, wholly unprepared by previous habits and opportunities to
perform the trust which it demands, is to degrade it, and finally to
destroy its power, for it may be safely assumed that no political truth
is better established than that such indiscriminate and all-embracing
extension of popular suffrage must end at last in its destruction.
ANDREW JOHNSON.
WASHINGTON, _January 28, 1867_.
_To the Senate of the United States_:
I return to the Senate, in which House it originated, a bill entitled
"An act to admit the State of Colorado into the Union," to which I can
not, consistently with my sense of duty, give my approval. With the
exception of an additional section, containing new provisions, it is
substantially the same as the bill of a similar title passed by Congress
during the last session, submitted to the President for his approval,
returned with the objections contained in a message bearing date the
15th of May last, and yet awaiting the reconsideration of the Senate.
A second bill, having in view the same purpose, has now passed both
Houses of Congress and been presented for my signature. Having again
carefully considered the subject, I have been unable to perceive any
reason for changing the opinions which have already been communicated to
Congress. I find, on the contrary, that there are many objections to the
proposed legislation of which I was not at that time aware, and that
while several of those which I then assigned have in the interval gained
in strength, yet others have been created by the altered character of
the measures now submitted.
The constitution under which the State government is proposed to be
formed very properly contains a provision that all laws in force at the
time of its adoption and the admission of the State into the Union shall
continue as if the constitution had not been adopted. Among those laws
is one absolutely prohibiting negroes and mulattoes from voting. At the
recent session of the Territorial legislature a bill for the repeal of
this law, introduced into the council, was almost unanimously rejected;
and at the very time when Congress was engaged in enacting the bill now
under consideration the legislature passed an act excluding negroes and
mulattoes from the right to sit as jurors. This bill was vetoed by the
governor of the Territory, who held that by the laws of the United
States negroes and mulattoes are citizens, and subject to the duties, as
well as entitled to the rights, of citizenship. The bill, however, was
passed, the objections of the governor to the contrary notwithstanding,
and is now a law of the Territory. Yet in the bill now before me, by
which it is proposed to admit the Territory as a State, it is provided
that "there shall be no denial of the elective franchise or any other
rights to any person by reason of race or color, excepting Indians not
taxed."
The incongruity thus exhibited between the legislation of Congress and
that of the Territory, taken in connection with the protest against the
admission of the State hereinafter referred to, would seem clearly to
indicate the impolicy and injustice of the proposed enactment.
It might, indeed, be a subject of grave inquiry, and doubtless will
result in such inquiry if this bill becomes a law, whether it does not
attempt to exercise a power not conferred upon Congress by the Federal
Constitution. That instrument simply declares that Congress may admit
new States into the Union. It nowhere says that Congress may make new
States for the purpose of admitting them into the Union or for any other
purpose; and yet this bill is as clear an attempt to make the
institutions as any in which the people themselves could engage.
In view of this action of Congress, the house of representatives of the
Territory have earnestly protested against being forced into the Union
without first having the question submitted to the people. Nothing could
be more reasonable than the position which they thus assume; and it
certainly can not be the purpose of Congress to force upon a community
against their will a government which they do not believe themselves
capable of sustaining.
The following is a copy of the protest alluded to as officially
transmitted to me:
Whereas it is announced in the public prints that it is the intention
of Congress to admit Colorado as a State into the Union: Therefore,
_Resolved by the house of representatives of the Territory_, That,
representing, as we do, the last and only legal expression of public
opinion on this question, we earnestly protest against the passage of a
law admitting the State without first having the question submitted to
a vote of the people, for the reasons, first, that we have a right to a
voice in the selection of the character of our government; second, that
we have not a sufficient population to support the expenses of a State
government. For these reasons we trust that Congress will not force upon
us a government against our will.
Upon information which I considered reliable, I assumed in my message of
the 15th of May last that the population of Colorado was not more than
30,000, and expressed the opinion that this number was entirely too
small either to assume the responsibilities or to enjoy the privileges
of a State.
It appears that previous to that time the legislature, with a view
to ascertain the exact condition of the Territory, had passed a law
authorizing a census of the population to be taken. The law made it
the duty of the assessors in the several counties to take the census
in connection with the annual assessments, and, in order to secure
a correct enumeration of the population, allowed them a liberal
compensation for the service by paying them for every name returned,
and added to their previous oath of office an oath to perform this
duty with fidelity.
From the accompanying official report it appears that returns have been
received from fifteen of the eighteen counties into which the State is
divided, and that their population amounts in the aggregate to 24,909.
The three remaining counties are estimated to contain 3,000, making a
total population of 27,909.
This census was taken in the summer season, when it is claimed that the
population is much larger than at any other period, as in the autumn
miners in large numbers leave their work and return to the East with the
results of their summer enterprise.
The population, it will be observed, is but slightly in excess of
one-fifth of the number required as the basis of representation for a
single Congressional district in any of the States--the number being
127,000.
I am unable to perceive any good reason for such great disparity in the
right of representation, giving, as it would, to the people of Colorado
not only this vast advantage in the House of Representatives, but an
equality in the Senate, where the other States are represented by
millions. With perhaps a single exception, no such inequality as this
has ever before been attempted. I know that it is claimed that the
population of the different States at the time of their admission has
varied at different periods, but it has not varied much more than the
population of each decade and the corresponding basis of representation
for the different periods.
The obvious intent of the Constitution was that no State should be
admitted with a less population than the ratio for a Representative at
the time of application. The limitation in the second section of the
first article of the Constitution, declaring that "each State shall have
at least one Representative," was manifestly designed to protect the
States which originally composed the Union from being deprived, in
the event of a waning population, of a voice in the popular branch of
Congress, and was never intended as a warrant to force a new State into
the Union with a representative population far below that which might at
the time be required of sister members of the Confederacy. This bill, in
view of the prohibition of the same section, which declares that "the
number of Representatives shall not exceed one for every 30,000," is at
least a violation of the spirit if not the letter of the Constitution.
It is respectfully submitted that however Congress, under the pressure
of circumstances, may have admitted two or three States with less than
a representative population at the time, there has been no instance in
which an application for admission has ever been entertained when the
population, as officially ascertained, was below 30,000.
Were there any doubt of this being the true construction of the
Constitution, it would be dispelled by the early and long-continued
practice of the Federal Government. For nearly sixty years after the
adoption of the Constitution no State was admitted with a population
believed at the time to be less than the current ratio for a
Representative, and the first instance in which there appears to have
been a departure from the principle was in 1845, in the case of Florida.
Obviously the result of sectional strife, we would do well to regard it
as a warning of evil rather than as an example for imitation; and I
think candid men of all parties will agree that the inspiring cause of
the violation of this wholesome principle of restraint is to be found
in a vain attempt to balance these antagonisms, which refused to be
reconciled except through the bloody arbitrament of arms. The plain
facts of our history will attest that the great and leading States
admitted since 1845, viz, Iowa, Wisconsin, California, Minnesota, and
Kansas, including Texas, which was admitted that year, have all come
with an ample population for one Representative, and some of them with
nearly or quite enough for two.
To demonstrate the correctness of my views on this question, I subjoin
a table containing a list of the States admitted since the adoption
of the Federal Constitution, with the date of admission, the ratio of
representation, and the representative population when admitted, deduced
from the United States census tables, the calculation being made for the
period of the decade corresponding with the date of admission.
Colorado, which it is now proposed to admit as a State, contains, as has
already been stated, a population less than 28,000, while the present
ratio of representation is 127,000.
There can be no reason that I can perceive for the admission of
Colorado that would not apply with equal force to nearly every other
Territory now organized; and I submit whether, if this bill become a
law, it will be possible to resist the logical conclusion that such
Territories as Dakota, Montana, and Idaho must be received as States
whenever they present themselves, without regard to the number of
inhabitants they may respectively contain. Eight or ten new Senators and
four or five new members of the House of Representatives would thus be
admitted to represent a population scarcely exceeding that which in any
other portion of the nation is entitled to but a single member of the
House of Representatives, while the average for two Senators in the
Union, as now constituted, is at least 1,000,000 people. It would surely
be unjust to all other sections of the Union to enter upon a policy with
regard to the admission of new States which might result in conferring
such a disproportionate share of influence in the National Legislature
upon communities which, in pursuance of the wise policy of our fathers,
should for some years to come be retained under the fostering care
and protection of the National Government. If it is deemed just and
expedient now to depart from the settled policy of the nation during
all its history, and to admit all the Territories to the rights and
privileges of States, irrespective of their population or fitness
for such government, it is submitted whether it would not be well to
devise such measures as will bring the subject before the country for
consideration and decision. This would seem to be eminently wise,
because, as has already been stated, if it is right to admit Colorado
now there is no reason for the exclusion of the other Territories.
It is no answer to these suggestions that an enabling act was passed
authorizing the people of Colorado to take action on this subject. It is
well known that that act was passed in consequence of representations
that the population reached, according to some statements, as high as
80,000, and to none less than 50,000, and was growing with a rapidity
which by the time the admission could be consummated would secure a
population of over 100,000. These representations proved to have been
wholly fallacious, and in addition the people of the Territory by a
deliberate vote decided that they would not assume the responsibilities
of a State government. By that decision they utterly exhausted all power
that was conferred by the enabling act, and there has been no step taken
since in relation to the admission that has had the slightest sanction
or warrant of law.
The proceeding upon which the present application is based was in the
utter absence of all law in relation to it, and there is no evidence
that the votes on the question of the formation of a State government
bear any relation whatever to the sentiment of the Territory. The
protest of the house of representatives previously quoted is conclusive
evidence to the contrary.
But if none of these reasons existed against this proposed enactment,
the bill itself, besides being inconsistent in its provisions in
conferring power upon a person unknown to the laws and who may never
have a legal existence, is so framed as to render its execution almost
impossible. It is, indeed, a question whether it is not in itself a
nullity. To say the least, it is of exceedingly doubtful propriety to
confer the power proposed in this bill upon the "governor elect," for as
by its own terms the constitution is not to take effect until after the
admission of the State, he in the meantime has no more authority than
any other private citizen. But even supposing him to be clothed with
sufficient authority to convene the legislature, what constitutes the
"State legislature" to which is to be referred the submission of the
conditions imposed by Congress? Is it a new body to be elected and
convened by proclamation of the "governor elect," or is it that body
which met more than a year ago under the provisions of the State
constitution? By reference to the second section of the schedule and to
the eighteenth section of the fourth article of the State constitution
it will be seen that the term of the members of the house of
representatives and that of one-half of the members of the senate
expired on the first Monday of the present month. It is clear that if
there were no intrinsic objections to the bill itself in relation to
purposes to be accomplished this objection would be fatal, as, it is
apparent that the provisions of the third section of the bill to admit
Colorado have reference to a period and a state of facts entirely
different from the present and affairs as they now exist, and if carried
into effect must necessarily lead to confusion.
Even if it were settled that the old and not a new body were to act, it
would be found impracticable to execute the law, because a considerable
number of the members, as I am informed, have ceased to be residents of
the Territory, and in the sixty days within which the legislature is to
be convened after the passage of the act there would not be sufficient
time to fill the vacancies by new elections, were there any authority
under which they could be held.
It may not be improper to add that if these proceedings were all regular
and the result to be obtained were desirable, simple justice to the
people of the Territory would require a longer period than sixty days
within which to obtain action on the conditions proposed by the third
section of the bill. There are, as is well known, large portions of the
Territory with which there is and can be no general communication, there
being several counties which from November to May can only be reached by
persons traveling on foot, while with other regions of the Territory,
occupied by a large portion of the population, there is very little more
freedom of access. Thus, if this bill should become a law, it would be
impracticable to obtain any expression of public sentiment in reference
to its provisions, with a view to enlighten the legislature, if the old
body were called together, and, of course, equally impracticable to
procure the election of a new body. This defect might have been remedied
by an extension of the time and a submission of the question to the
people, with a fair opportunity to enable them to express their
sentiments.
The admission of a new State has generally been regarded as an epoch in
our history marking the onward progress of the nation; but after the
most careful and anxious inquiry on the subject I can not perceive that
the proposed proceeding is in conformity with the policy which from the
origin of the Government has uniformly prevailed in the admission of new
States. I therefore return the bill to the Senate without my signature.
ANDREW JOHNSON.
States Admitted. Ratio. Population.
Vermont................................... 1791 33,000 92,320
Kentucky.................................. 1792 33,000 95,638
Tennessee................................. 1796 33,000 73,864
Ohio...................................... 1802 33,000 82,443
Louisiana................................. 1812 35,000 75,212
Indiana................................... 1816 35,000 98,110
Mississippi............................... 1817 35,000 53,677
Illinois.................................. 1818 35,000 46,274
Alabama................................... 1819 35,000 111,150
Maine..................................... 1820 35,000 298,335
Missouri.................................. 1821 35,000 69,260
Arkansas.................................. 1836 47,700 65,175
Michigan.................................. 1837 47,700 158,073
Florida................................... 1845 70,680 57,951
Texas..................................... 1845 70,680 189,327 [17]
Iowa...................................... 1846 70,680 132,527
Wisconsin................................. 1848 70,680 250,497
California................................ 1850 70,680 92,597
Oregon.................................... 1858 93,492 44,630
Minnesota................................. 1859 93,492 138,909
Kansas.................................... 1861 93,492 107,206
West Virginia............................. 1862 93,492 349,628
Nevada.................................... 1864 127,000 Not known.
[Footnote 17: In 1850.]
WASHINGTON, _January 29, 1867_.
_To the Senate of the United States_:
I return for reconsideration a bill entitled "An act for the admission
of the State of Nebraska into the Union," which originated in the Senate
and has received the assent of both Houses of Congress. A bill having in
view the same object was presented for my approval a few hours prior to
the adjournment of the last session, but, submitted at a time when there
was no opportunity for a proper consideration of the subject, I withheld
my signature and the measure failed to become a law.
It appears by the preamble of this bill that the people of Nebraska,
availing themselves of the authority conferred upon them by the act
passed on the 19th day of April, 1864, "have adopted a constitution
which, upon due examination, is found to conform to the provisions and
comply with the conditions of said act, and to be republican in its form
of government, and that they now ask for admission into the Union."
This proposed law would therefore seem to be based upon the declaration
contained in the enabling act that upon compliance with its terms the
people of Nebraska should be admitted into the Union upon an equal
footing with the original States. Reference to the bill, however, shows
that while by the first section Congress distinctly accepts, ratifies,
and confirms the Constitution and State government which the people of
the Territory have formed for themselves, declares Nebraska to be one
of the United States of America, and admits her into the Union upon an
equal footing with the original States in all respects whatsoever, the
third section provides that this measure "shall not take effect except
upon the fundamental condition that within the State of Nebraska there
shall be no denial of the elective franchise, or of any other right,
to any person by reason of race or color, excepting Indians not
taxed; and upon the further fundamental condition that the legislature
of said State, by a solemn public act, shall declare the assent of
said State to the said fundamental condition, and shall transmit to
the President of the United States an authentic copy of said act, upon
receipt whereof the President, by proclamation, shall forthwith announce
the fact, whereupon said fundamental condition shall be held as a part
of the organic law of the State; and thereupon, and without any further
proceeding on the part of Congress, the admission of said State into the
Union shall be considered as complete." This condition is not mentioned
in the original enabling act; was not contemplated at the time of its
passage; was not sought by the people themselves; has not heretofore
been applied to the inhabitants of any State asking admission, and is in
direct conflict with the constitution adopted by the people and declared
in the preamble "to be republican in its form of government," for in
that instrument the exercise of the elective franchise and the right
to hold office are expressly limited to white citizens of the United
States. Congress thus undertakes to authorize and compel the legislature
to change a constitution which, it is declared in the preamble, has
received the sanction of the people, and which by this bill is
"accepted, ratified, and confirmed" by the Congress of the nation.
The first and third sections of the bill exhibit yet further
incongruity. By the one Nebraska is "admitted into the Union upon an
equal footing with the original States in all respects whatsoever,"
while by the other Congress demands as a condition precedent to her
admission requirements which in our history have never been asked of
any people when presenting a constitution and State government for the
acceptance of the lawmaking power. It is expressly declared by the third
section that the bill "shall not take effect except upon the fundamental
condition that within the State of Nebraska there shall be no denial of
the elective franchise, or of any other right, to any person by reason
of race or color, excepting Indians not taxed." Neither more nor less
than the assertion of the right of Congress to regulate the elective
franchise of any State hereafter to be admitted, this condition is in
clear violation of the Federal Constitution, under the provisions of
which, from the very foundation of the Government, each State has been
left free to determine for itself the qualifications necessary for
the exercise of suffrage within its limits. Without precedent in our
legislation, it is in marked contrast with those limitations which,
imposed upon States that from time to time have become members of the
Union, had for their object the single purpose of preventing any
infringement of the Constitution of the country.
If Congress is satisfied that Nebraska at the present time possesses
sufficient population to entitle her to full representation in the
councils of the nation, and that her people desire an exchange of a
Territorial for a State government, good faith would seem to demand that
she should be admitted without further requirements than those expressed
in the enabling act, with all of which, it is asserted in the preamble,
her inhabitants have complied. Congress may, under the Constitution,
admit new States or reject them, but the people of a State can alone
make or change their organic law and prescribe the qualifications
requisite for electors. Congress, however, in passing the bill in the
shape in which it has been submitted for my approval, does not merely
reject the application of the people of Nebraska for present admission
as a State into the Union, on the ground that the constitution which
they have submitted restricts the exercise of the elective franchise to
the white population, but imposes conditions which, if accepted by the
legislature, may, without the consent of the people, so change the
organic law as to make electors of all persons within the State without
distinction of race or color. In view of this fact, I suggest for the
consideration of Congress whether it would not be just, expedient, and
in accordance with the principles of our Government to allow the people,
by popular vote or through a convention chosen by themselves for that
purpose, to declare whether or not they will accept the terms upon which
it is now proposed to admit them into the Union. This course would
not occasion much greater delay than that which the bill contemplates
when it requires that the legislature shall be convened within thirty
days after this measure shall have become a law for the purpose of
considering and deciding the conditions which it imposes, and gains
additional force when we consider that the proceedings attending the
formation of the State constitution were not in conformity with the
provisions of the enabling act; that in an aggregate vote of 7,776 the
majority in favor of the constitution did not exceed 100; and that it is
alleged that, in consequence of frauds, even this result can not be
received as a fair expression of the wishes of the people. As upon them
must fall the burdens of a State organization, it is but just that they
should be permitted to determine for themselves a question which so
materially affects their interests. Possessing a soil and a climate
admirably adapted to those industrial pursuits which bring prosperity
and greatness to a people, with the advantage of a central position
on the great highway that will soon connect the Atlantic and Pacific
States, Nebraska is rapidly gaining in numbers and wealth, and may
within a very brief period claim admission on grounds which will
challenge and secure universal assent. She can therefore wisely and
patiently afford to wait. Her population is said to be steadily and
even rapidly increasing, being now generally conceded as high as 40,000,
and estimated by some whose judgment is entitled to respect at a still
greater number. At her present rate of growth she will in a very short
time have the requisite population for a Representative in Congress,
and, what is far more important to her own citizens, will have realized
such an advance in material wealth as will enable the expenses of a
State government to be borne without oppression to the taxpayer. Of new
communities it may be said with special force--and it is true of old
ones--that the inducement to emigrants, other things being equal, is in
almost the precise ratio of the rate of taxation. The great States of
the Northwest owe their marvelous prosperity largely to the fact that
they were continued as Territories until they had growth to be wealthy
and populous communities.
ANDREW JOHNSON.
WASHINGTON, _March 2, 1867_.
_To the Senate of the United States_:
I have carefully examined the bill "to regulate the tenure of certain
civil offices." The material portion of the bill is contained in the
first section, and is of the effect following, namely:
That every person holding any civil office to which he has been
appointed, by and with the advice and consent of the Senate, and every
person who shall hereafter be appointed to any such office and shall
become duly qualified to act therein, is and shall be entitled
to hold such office until a successor shall have been appointed
by the President, with the advice and consent of the Senate, and duly
qualified; and that the Secretaries of State, of the Treasury, of War,
of the Navy, and of the Interior, the Postmaster-General, and the
Attorney-General shall hold their offices respectively for and during
the term of the President by whom they may have been appointed and for
one month thereafter, subject to removal by and with the advice and
consent of the Senate.
These provisions are qualified by a reservation in the fourth section,
"that nothing contained in the bill shall be construed to extend the
term of any office the duration of which is limited by law." In effect
the bill provides that the President shall not remove from their places
any of the civil officers whose terms of service are not limited by law
without the advice and consent of the Senate of the United States. The
bill in this respect conflicts, in my judgment, with the Constitution
of the United States. The question, as Congress is well aware, is by no
means a new one. That the power of removal is constitutionally vested
in the President of the United States is a principle which has been not
more distinctly declared by judicial authority and judicial commentators
than it has been uniformly practiced upon by the legislative and
executive departments of the Government. The question arose in the House
of Representatives so early as the 16th of June, 1789, on the bill for
establishing an Executive Department denominated "the Department of
Foreign Affairs." The first clause of the bill, after recapitulating
the functions of that officer and defining his duties, had these words:
"To be removable from office by the President of the United States."
It was moved to strike out these words and the motion was sustained
with great ability and vigor. It was insisted that the President could
not constitutionally exercise the power of removal exclusively of the
Senate; that the Federalist so interpreted the Constitution when arguing
for its adoption by the several States; that the Constitution had
nowhere given the President power of removal, either expressly or by
strong implication, but, on the contrary, had distinctly provided for
removals from office by impeachment only.
A construction which denied the power of removal by the President was
further maintained by arguments drawn from the danger of the abuse of
the power; from the supposed tendency of an exposure of public officers
to capricious removal to impair the efficiency of the civil service;
from the alleged injustice and hardship of displacing incumbents
dependent upon their official stations without sufficient consideration;
from a supposed want of responsibility on the part of the President, and
from an imagined defect of guaranties against a vicious President who
might incline to abuse the power. On the other hand, an exclusive power
of removal by the President was defended as a true exposition of the
text of the Constitution. It was maintained that there are certain
causes for which persons ought to be removed from office without being
guilty of treason, bribery, or malfeasance, and that the nature of
things demands that it should be so. "Suppose," it was said, "a man
becomes insane by the visitation of God and is likely to ruin our
affairs; are the hands of the Government to be confined from warding off
the evil? Suppose a person in office not possessing the talents he was
judged to have at the time of the appointment; is the error not to be
corrected? Suppose he acquires vicious habits and incurable indolence or
total neglect of the duties of his office, which shall work mischief to
the public welfare; is there no way to arrest the threatened danger?
Suppose he becomes odious and unpopular by reason of the measures he
pursues--and this he may do without committing any positive offense
against the law; must he preserve his office in despite of the popular
will? Suppose him grasping for his own aggrandizement and the elevation
of his connections by every means short of the treason defined by the
Constitution, hurrying your affairs to the precipice of destruction,
endangering your domestic tranquillity, plundering you of the means of
defense, alienating the affections of your allies and promoting the
spirit of discord; must the tardy, tedious, desultory road by way of
impeachment be traveled to overtake the man who, barely confining
himself within the letter of the law, is employed in drawing off the
vital principle of the Government? The nature of things, the great
objects of society, the express objects of the Constitution itself,
require that this thing should be otherwise. To unite the Senate with
the President in the exercise of the power," it was said, "would involve
us in the most serious difficulty. Suppose a discovery of any of those
events should take place when the Senate is not in session; how is the
remedy to be applied? The evil could be avoided in no other way than by
the Senate sitting always." In regard to the danger of the power being
abused if exercised by one man it was said "that the danger is as great
with respect to the Senate, who are assembled from various parts of the
continent, with different impressions and opinions;" "that such a body
is more likely to misuse the power of removal than the man whom the
united voice of America calls to the Presidential chair. As the nature
of government requires the power of removal," it was maintained "that it
should be exercised in this way by the hand capable of exerting itself
with effect; and the power must be conferred on the President by the
Constitution as the executive officer of the Government."
Mr. Madison, whose adverse opinion in the Federalist had been relied
upon by those who denied the exclusive power, now participated in the
debate. He declared that he had reviewed his former opinions, and he
summed up the whole case as follows:
The Constitution affirms that the executive power is vested in the
President. Are there exceptions to this proposition? Yes; there are.
The Constitution says that in appointing to office the Senate shall be
associated with the President, unless in the case of inferior officers,
when the law shall otherwise direct. Have we (that is, Congress) a
right to extend this exception? I believe not. If the Constitution has
invested all executive power in the President, I venture to assert
that the Legislature has no right to diminish or modify his executive
authority. The question now resolves itself into this: Is the power of
displacing an executive power? I conceive that if any power whatsoever
is in the Executive it is the power of appointing, overseeing, and
controlling those who execute the laws. If the Constitution had not
qualified the power of the President in appointing to office by
associating the Senate with him in that business, would it not be clear
that he would have the right by virtue of his executive power to make
such appointment? Should we be authorized in defiance of that clause
in the Constitution, "The executive power shall be vested in the
President," to unite the Senate with the President in the appointment
to office? I conceive not. If it is admitted that we should not be
authorized to do this, I think it may be disputed whether we have a
right to associate them in removing persons from office, the one power
being as much of an executive nature as the other; and the first one is
authorized by being excepted out of the general rule established by the
Constitution in these words: "The executive power shall be vested in the
President."
The question, thus ably and exhaustively argued, was decided by the
House of Representatives, by a vote of 34 to 20, in favor of the
principle that the executive power of removal is vested by the
Constitution in the Executive, and in the Senate by the casting vote
of the Vice-President.
The question has often been raised in subsequent times of high
excitement, and the practice of the Government has, nevertheless,
conformed in all cases to the decision thus early made.
The question was revived during the Administration of President Jackson,
who made, as is well recollected, a very large number of removals, which
were made an occasion of close and rigorous scrutiny and remonstrance.
The subject was long and earnestly debated in the Senate, and the early
construction of the Constitution was, nevertheless, freely accepted as
binding and conclusive upon Congress.
The question came before the Supreme Court of the United States in
January, 1839, _ex parte_ Hennen. It was declared by the court on that
occasion that the power of removal from office was a subject much
disputed, and upon which a great diversity of opinion was entertained in
the early history of the Government. This related, however, to the power
of the President to remove officers appointed with the concurrence of
the Senate, and the great question was whether the removal was to be
by the President alone or with the concurrence of the Senate, both
constituting the appointing power. No one denied the power of the
President and Senate jointly to remove where the tenure of the office
was not fixed by the Constitution, which was a full recognition of the
principle that the power of removal was incident to the power of
appointment; but it was very early adopted as a practical construction
of the Constitution that this power was vested in the President alone,
and such would appear to have been the legislative construction of the
Constitution, for in the organization of the three great Departments of
State, War, and Treasury, in the year 1789, provision was made for the
appointment of a subordinate officer by the head of the Department, who
should have charge of the records, books, and papers appertaining to the
office when the head of the Department should be removed from office
by the President of the United States. When the Navy Department was
established, in the year 1798, provision was made for the charge and
custody of the books, records, and documents of the Department in case
of vacancy in the office of Secretary by removal or otherwise. It is not
here said "by removal of the President," as is done with respect to the
heads of the other Departments, yet there can be no doubt that he holds
his office with the same tenure as the other Secretaries and is
removable by the President. The change of phraseology arose, probably,
from its having become the settled and well-understood construction of
the Constitution that the power of removal was vested in the President
alone in such cases, although the appointment of the officer is by the
President and Senate. (13 Peters, p. 139.)
Our most distinguished and accepted commentators upon the Constitution
concur in the construction thus early given by Congress, and thus
sanctioned by the Supreme Court. After a full analysis of the
Congressional debate to which I have referred, Mr. Justice Story comes
to this conclusion:
After a most animated discussion, the vote finally taken in the House
of Representatives was affirmative of the power of removal in the
President, without any cooperation of the Senate, by the vote of 34
members against 20. In the Senate the clause in the bill affirming the
power was carried by the casting vote of the Vice-President. That the
final decision of this question so made was greatly influenced by the
exalted character of the President then in office was asserted at the
time and has always been believed; yet the doctrine was opposed as well
as supported by the highest talents and patriotism of the country. The
public have acquiesced in this decision, and it constitutes, perhaps,
the most extraordinary case in the history of the Government of a power
conferred by implication on the Executive by the assent of a bare
majority of Congress which has not been questioned on many other
occasions.
The commentator adds:
Nor is this general acquiescence and silence without a satisfactory
explanation.
Chancellor Kent's remarks on the subject are as follows:
On the first organization of the Government it was made a question
whether the power of removal in case of officers appointed to hold
at pleasure resided nowhere but in the body which appointed, and, of
course, whether the consent of the Senate was not requisite to remove.
This was the construction given to the Constitution, while it was
pending for ratification before the State conventions, by the author of
the Federalist. But the construction which was given to the Constitution
by Congress, after great consideration and discussion, was different.
The words of the act [establishing the Treasury Department] are: "And
whenever the same shall be removed from office by the President of
the United States, or in any other case of vacancy in the office, the
assistant shall act." This amounted to a legislative construction of the
Constitution, and it has ever since been acquiesced in and acted upon
as a decisive authority in the case. It applies equally to every other
officer of the Government appointed by the President, whose term of
duration is not specially declared. It is supported by the weighty
reason that the subordinate officers in the executive department ought
to hold at the pleasure of the head of the department, because he is
invested generally with the executive authority, and the participation
in that authority by the Senate was an exception to a general principle
and ought to be taken strictly. The President is the great responsible
officer for the faithful execution of the law, and the power of removal
was incidental to that duty, and might often be requisite to fulfill it.
Thus has the important question presented by this bill been settled, in
the language of the late Daniel Webster (who, while dissenting from it,
admitted that it was settled), by construction, settled by precedent,
settled by the practice of the Government, and settled by statute. The
events of the last war furnished a practical confirmation of the wisdom
of the Constitution as it has hitherto been maintained in many of its
parts, including that which is now the subject of consideration. When
the war broke out, rebel enemies, traitors, abettors, and sympathizers
were found in every Department of the Government, as well in the civil
service as in the land and naval military service. They were found in
Congress and among the keepers of the Capitol; in foreign missions; in
each and all the Executive Departments; in the judicial service; in the
post-office, and among the agents for conducting Indian affairs. Upon
probable suspicion they were promptly displaced by my predecessor, so
far as they held their offices under executive authority, and their
duties were confided to new and loyal successors. No complaints against
that power or doubts of its wisdom were entertained in any quarter. I
sincerely trust and believe that no such civil war is likely to occur
again. I can not doubt, however, that in whatever form and on whatever
occasion sedition can raise an effort to hinder or embarrass or defeat
the legitimate action of this Government, whether by preventing the
collection of revenue, or disturbing the public peace, or separating the
States, or betraying the country to a foreign enemy, the power of
removal from office by the Executive, as it has heretofore existed and
been practiced, will be found indispensable.
Under these circumstances, as a depositary of the executive authority of
the nation, I do not feel at liberty to unite with Congress in reversing
it by giving my approval to the bill. At the early day when this
question was settled, and, indeed, at the several periods when it has
subsequently been agitated, the success of the Constitution of the
United States, as a new and peculiar system of free representative
government, was held doubtful in other countries, and was even a subject
of patriotic apprehension among the American people themselves. A trial
of nearly eighty years, through the vicissitudes of foreign conflicts
and of civil war, is confidently regarded as having extinguished all
such doubts and apprehensions for the future. During that eighty years
the people of the United States have enjoyed a measure of security,
peace, prosperity, and happiness never surpassed by any nation. It can
not be doubted that the triumphant success of the Constitution is due
to the wonderful wisdom with which the functions of government were
distributed between the three principal departments--the legislative,
the executive, and the judicial--and to the fidelity with which each
has confined itself or been confined by the general voice of the nation
within its peculiar and proper sphere. While a just, proper, and
watchful jealousy of executive power constantly prevails, as it ought
ever to prevail, yet it is equally true that an efficient Executive,
capable, in the language of the oath prescribed to the President, of
executing the laws and, within the sphere of executive action, of
preserving, protecting, and defending the Constitution of the United
States, is an indispensable security for tranquillity at home and peace,
honor, and safety abroad. Governments have been erected in many
countries upon our model. If one or many of them have thus far failed in
fully securing to their people the benefits which we have derived from
our system, it may be confidently asserted that their misfortune has
resulted from their unfortunate failure to maintain the integrity of
each of the three great departments while preserving harmony among
them all.
Having at an early period accepted the Constitution in regard to the
Executive office in the sense in which it was interpreted with the
concurrence of its founders, I have found no sufficient grounds in the
arguments now opposed to that construction or in any assumed necessity
of the times for changing those opinions. For these reasons I return
the bill to the Senate, in which House it originated, for the further
consideration of Congress which the Constitution prescribes. Insomuch as
the several parts of the bill which I have not considered are matters
chiefly of detail and are based altogether upon the theory of the
Constitution from which I am obliged to dissent, I have not thought
it necessary to examine them with a view to make them an occasion of
distinct and special objections.
Experience, I think, has shown that it is the easiest, as it is
also the most attractive, of studies to frame constitutions for the
self-government of free states and nations. But I think experience has
equally shown that it is the most difficult of all political labors to
preserve and maintain such free constitutions of self-government when
once happily established. I know no other way in which they can be
preserved and maintained except by a constant adherence to them through
the various vicissitudes of national existence, with such adaptations
as may become necessary, always to be effected, however, through the
agencies and in the forms prescribed in the original constitutions
themselves.
Whenever administration fails or seems to fail in securing any of the
great ends for which republican government is established, the proper
course seems to be to renew the original spirit and forms of the
Constitution itself.
ANDREW JOHNSON.
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.
I will first quote from the opinion of the majority of the court:
Martial law can not arise from a threatened invasion. The necessity
must be actual and present, the invasion real, such as effectually
closes the courts and deposes the civil administration.
We see that martial law comes in only when actual war closes the courts
and deposes the civil authority; but this bill, in time of peace, makes
martial law operate as though we were in actual war, and becomes the
_cause_ instead of the _consequence_ of the abrogation of civil
authority. One more quotation:
It follows from what has been said on this subject that there are
occasions when martial law can be properly applied. If in foreign
invasion or civil war the courts are actually closed, and it is
impossible to administer criminal justice according to law, _then_, on
the theater of active military operations, where war really prevails,
there is a necessity to furnish a substitute for the civil authority
thus overthrown, to preserve the safety of the army and society; and as
no power is left but the military, it is allowed to govern by martial
rule until the laws can have their free course.
I now quote from the opinion of the minority of the court, delivered by
Chief Justice Chase:
We by no means assert that Congress can establish and apply the laws of
war where no war has been declared or exists. Where peace exists, the
laws of peace must prevail.
This is sufficiently explicit. Peace exists in all the territory to
which this bill applies. It asserts a power in Congress, in time of
peace, to set aside the laws of peace and to substitute the laws of war.
The minority, concurring with the majority, declares that Congress does
not possess that power. Again, and, if possible, more emphatically, the
Chief Justice, with remarkable clearness and condensation, sums up the
whole matter as follows:
There are under the Constitution three kinds of military
jurisdiction--one to be exercised both in peace and war; another to be
exercised in time of foreign war without the boundaries of the United
States, or in time of rebellion and civil war within States or districts
occupied by rebels treated as belligerents; and a third to be exercised
in time of invasion or insurrection within the limits of the United
States, or during rebellion within the limits of the States maintaining
adhesion to the National Government, when the public danger requires its
exercise. The first of these may be called jurisdiction under military
law, and is found in acts of Congress prescribing rules and articles of
war or otherwise providing for the government of the national forces;
the second may be distinguished as military government, superseding
as far as may be deemed expedient the local law, and exercised by
the military commander under the direction of the President, with
the express or implied sanction of Congress; while the third may be
denominated martial law proper, and is called into action by Congress,
or temporarily, when the action of Congress can not be invited, and in
the case of justifying or excusing peril, by the President, in times of
insurrection or invasion or of civil or foreign war, within districts
or localities where ordinary law no longer adequately secures public
safety and private rights.
It will be observed that of the three kinds of military jurisdiction
which can be exercised or created under our Constitution there is but
one that can prevail in time of peace, and that is the code of laws
enacted by Congress for the government of the national forces. That body
of military law has no application to the citizen, nor even to the
citizen soldier enrolled in the militia in time of peace. But this bill
is not a part of that sort of military law, for that applies only to the
soldier and not to the citizen, whilst, contrariwise, the military law
provided by this bill applies only to the citizen and not to the
soldier.
I need not say to the representatives of the American people that their
Constitution forbids the exercise of judicial power in any way but
one--that is, by the ordained and established courts. It is equally well
known that in all criminal cases a trial by jury is made indispensable
by the express words of that instrument. I will not enlarge on the
inestimable value of the right thus secured to every freeman or speak
of the danger to public liberty in all parts of the country which must
ensue from a denial of it anywhere or upon any pretense. A very recent
decision of the Supreme Court has traced the history, vindicated the
dignity, and made known the value of this great privilege so clearly
that nothing more is needed. To what extent a violation of it might be
excused in time of war or public danger may admit of discussion, but we
are providing now for a time of profound peace, when there is not an
armed soldier within our borders except those who are in the service
of the Government. It is in such a condition of things that an act of
Congress is proposed which, if carried out, would deny a trial by the
lawful courts and juries to 9,000,000 American citizens and to their
posterity for an indefinite period. It seems to be scarcely possible
that anyone should seriously believe this consistent with a Constitution
which declares in simple, plain, and unambiguous language that all
persons shall have that right and that no person shall ever in any case
be deprived of it. The Constitution also forbids the arrest of the
citizen without judicial warrant, founded on probable cause. This bill
authorizes an arrest without warrant, at the pleasure of a military
commander. The Constitution declares that "no person shall be held to
answer for a capital or otherwise infamous crime unless on presentment
by a grand jury." This bill holds every person not a soldier answerable
for all crimes and all charges without any presentment. The Constitution
declares that "no person shall be deprived of life, liberty, or property
without due process of law." This bill sets aside all process of law,
and makes the citizen answerable in his person and property to the
will of one man, and as to his life to the will of two. Finally, the
Constitution declares that "the privilege of the writ of _habeas corpus_
shall not be suspended unless when, in case of rebellion or invasion,
the public safety may require it;" whereas this bill declares martial
law (which of itself suspends this great writ) in time of peace, and
authorizes the military to make the arrest, and gives to the prisoner
only one privilege, and that is a trial "without unnecessary delay."
He has no hope of release from custody, except the hope, such as it is,
of release by acquittal before a military commission.
The United States are bound to guarantee to each State a republican form
of government. Can it be pretended that this obligation is not palpably
broken if we carry out a measure like this, which wipes away every
vestige of republican government in ten States and puts the life,
property, liberty, and honor of all the people in each of them under
the domination of a single person clothed with unlimited authority?
The Parliament of England, exercising the omnipotent power which it
claimed, was accustomed to pass bills of attainder; that is to say, it
would convict men of treason and other crimes by legislative enactment.
The person accused had a hearing, sometimes a patient and fair one, but
generally party prejudice prevailed instead of justice. It often became
necessary for Parliament to acknowledge its error and reverse its own
action. The fathers of our country determined that no such thing should
occur here. They withheld the power from Congress, and thus forbade its
exercise by that body, and they provided in the Constitution that no
State should pass any bill of attainder. It is therefore impossible for
any person in this country to be constitutionally convicted or punished
for any crime by a legislative proceeding of any sort. Nevertheless,
here is a bill of attainder against 9,000,000 people at once. It is
based upon an accusation so vague as to be scarcely intelligible and
found to be true upon no credible evidence. Not one of the 9,000,000 was
heard in his own defense. The representatives of the doomed parties were
excluded from all participation in the trial. The conviction is to be
followed by the most ignominious punishment ever inflicted on large
masses of men. It disfranchises them by hundreds of thousands and
degrades them all, even those who are admitted to be guiltless, from
the rank of freemen to the condition of slaves.
The purpose and object of the bill--the general intent which pervades it
from beginning to end--is to change the entire structure and character
of the State governments and to compel them by force to the adoption of
organic laws and regulations which they are unwilling to accept if left
to themselves. The negroes have not asked for the privilege of voting;
the vast majority of them have no idea what it means. This bill not only
thrusts it into their hands, but compels them, as well as the whites, to
use it in a particular way. If they do not form a constitution with
prescribed articles in it and afterwards elect a legislature which will
act upon certain measures in a prescribed way, neither blacks nor whites
can be relieved from the slavery which the bill imposes upon them.
Without pausing here to consider the policy or impolicy of Africanizing
the southern part of our territory, I would simply ask the attention of
Congress to that manifest, well-known, and universally acknowledged rule
of constitutional law which declares that the Federal Government has no
jurisdiction, authority, or power to regulate such subjects for any
State. To force the right of suffrage out of the hands of the white
people and into the hands of the negroes is an arbitrary violation of
this principle.
This bill imposes martial law at once, and its operations will begin
so soon as the general and his troops can be put in place. The dread
alternative between its harsh rule and compliance with the terms of this
measure is not suspended, nor are the people afforded any time for free
deliberation. The bill says to them, take martial law first, _then_
deliberate. And when they have done all that this measure requires them
to do other conditions and contingencies over which they have no control
yet remain to be fulfilled before they can be relieved from martial law.
Another Congress must first approve the Constitution made in conformity
with the will of this Congress and must declare these States entitled to
representation in both Houses. The whole question thus remains open and
unsettled and must again occupy the attention of Congress; and in the
meantime the agitation which now prevails will continue to disturb all
portions of the people.
The bill also denies the legality of the governments of ten of the
States which participated in the ratification of the amendment to the
Federal Constitution abolishing slavery forever within the jurisdiction
of the United States and practically excludes them from the Union. If
this assumption of the bill be correct, their concurrence can not be
considered as having been legally given, and the important fact is made
to appear that the consent of three-fourths of the States--the requisite
number--has not been constitutionally obtained to the ratification of
that amendment, thus leaving the question of slavery where it stood
before the amendment was officially declared to have become a part of
the Constitution.
That the measure proposed by this bill does violate the Constitution
in the particulars mentioned and in many other ways which I forbear
to enumerate is too clear to admit of the least doubt. It only remains
to consider whether the injunctions of that instrument ought to be
obeyed or not. I think they ought to be obeyed, for reasons which I will
proceed to give as briefly as possible.
In the first place, it is the only system of free government which we
can hope to have as a nation. When it ceases to be the rule of our
conduct, we may perhaps take our choice between complete anarchy, a
consolidated despotism, and a total dissolution of the Union; but
national liberty regulated by law will have passed beyond our reach.
It is the best frame of government the world ever saw. No other is or
can be so well adapted to the genius, habits, or wants of the American
people. Combining the strength of a great empire with unspeakable
blessings of local self-government, having a central power to defend the
general interests, and recognizing the authority of the States as the
guardians of industrial rights, it is "the sheet anchor of our safety
abroad and our peace at home." It was ordained "to form a more perfect
union, establish justice, insure domestic tranquillity, promote the
general welfare, provide for the common defense, and secure the
blessings of liberty to ourselves and to our posterity." These great
ends have been attained heretofore, and will be again by faithful
obedience to it; but they are certain to be lost if we treat with
disregard its sacred obligations.
It was to punish the gross crime of defying the Constitution and to
vindicate its supreme authority that we carried on a bloody war of four
years' duration. Shall we now acknowledge that we sacrificed a million
of lives and expended billions of treasure to enforce a Constitution
which is not worthy of respect and preservation?
Those who advocated the right of secession alleged in their own
justification that we had no regard for law and that their rights of
property, life, and liberty would not be safe under the Constitution as
administered by us. If we now verify their assertion, we prove that they
were in truth and in fact fighting for their liberty, and instead of
branding their leaders with the dishonoring name of traitors against a
righteous and legal government we elevate them in history to the rank
of self-sacrificing patriots, consecrate them to the admiration of the
world, and place them by the side of Washington, Hampden, and Sidney.
No; let us leave them to the infamy they deserve, punish them as they
should be punished, according to law, and take upon ourselves no share
of the odium which they should bear alone.
It is a part of our public history which can never be forgotten that
both Houses of Congress, in July, 1861, declared in the form of a solemn
resolution that the war was and should be carried on for no purpose of
subjugation, but solely to enforce the Constitution and laws, and that
when this was yielded by the parties in rebellion the contest should
cease, with the constitutional rights of the States and of individuals
unimpaired. This resolution was adopted and sent forth to the world
unanimously by the Senate and with only two dissenting voices in the
House. It was accepted by the friends of the Union in the South as well
as in the North as expressing honestly and truly the object of the war.
On the faith of it many thousands of persons in both sections gave their
lives and their fortunes to the cause. To repudiate it now by refusing
to the States and to the individuals within them the rights which the
Constitution and laws of the Union would secure to them is a breach of
our plighted honor for which I can imagine no excuse and to which I
cannot voluntarily become a party.
The evils which spring from the unsettled state of our Government will
be acknowledged by all. Commercial intercourse is impeded, capital is in
constant peril, public securities fluctuate in value, peace itself is
not secure, and the sense of moral and political duty is impaired. To
avert these calamities from our country it is imperatively required that
we should immediately decide upon some course of administration which
can be steadfastly adhered to. I am thoroughly convinced that any
settlement or compromise or plan of action which is inconsistent with
the principles of the Constitution will not only be unavailing, but
mischievous; that it will but multiply the present evils, instead of
removing them. The Constitution, in its whole integrity and vigor,
throughout the length and breadth of the land, is the best of all
compromises. Besides, our duty does not, in my judgment, leave us a
choice between that and any other. I believe that it contains the remedy
that is so much needed, and that if the coordinate branches of the
Government would unite upon its provisions they would be found broad
enough and strong enough to sustain in time of peace the nation which
they bore safely through the ordeal of a protracted civil war. Among the
most sacred guaranties of that instrument are those which declare that
"each State shall have at least one Representative," and that "no
State, without its consent, shall be deprived of its equal suffrage in
the Senate." Each House is made the "judge of the elections, returns,
and qualifications of its own members," and may, "with the concurrence
of two-thirds, expel a member." Thus, as heretofore urged, "in the
admission of Senators and Representatives from any and all of the
States there can be no just ground of apprehension that persons who are
disloyal will be clothed with the powers of legislation, for this could
not happen when the Constitution and the laws are enforced by a vigilant
and faithful Congress." "When a Senator or Representative presents his
certificate of election, he may at once be admitted or rejected; or,
should there be any question as to his eligibility, his credentials may
be referred for investigation to the appropriate committee. If admitted
to a seat, it must be upon evidence satisfactory to the House of which
he thus becomes a member that he possesses the requisite constitutional
and legal qualifications. If refused admission as a member for want of
due allegiance to the Government, and returned to his constituents, they
are admonished that none but persons loyal to the United States will be
allowed a voice in the legislative councils of the nation, and the
political power and moral influence of Congress are thus effectively
exerted in the interests of loyalty to the Government and fidelity to
the Union." And is it not far better that the work of restoration should
be accomplished by simple compliance with the plain requirements of the
Constitution than by a recourse to measures which in effect destroy the
States and threaten the subversion of the General Government? All that
is necessary to settle this simple but important question without
further agitation or delay is a willingness on the part of all to
sustain the Constitution and carry its provisions into practical
operation. If to-morrow either branch of Congress would declare that
upon the presentation of their credentials members constitutionally
elected and loyal to the General Government would be admitted to seats
in Congress, while all others would be excluded and their places remain
vacant until the selection by the people of loyal and qualified persons,
and if at the same time assurance were given that this policy would be
continued until all the States were represented in Congress, it would
send a thrill of joy throughout the entire land, as indicating the
inauguration of a system which must speedily bring tranquillity to the
public mind.
While we are legislating upon subjects which are of great importance to
the whole people, and which must affect all parts of the country, not
only during the life of the present generation, but for ages to come, we
should remember that all men are entitled at least to a hearing in the
councils which decide upon the destiny of themselves and their children.
At present ten States are denied representation, and when the Fortieth
Congress assembles on the 4th day of the present month sixteen States
will be without a voice in the House of Representatives. This grave
fact, with the important questions before us, should induce us to pause
in a course of legislation which, looking solely to the attainment of
political ends, fails to consider the rights it transgresses, the law
which it violates, or the institutions which it imperils.
ANDREW JOHNSON.
PROCLAMATIONS.
ANDREW JOHNSON, PRESIDENT OF THE UNITED STATES OF AMERICA.
_To all whom it may concern_:
Whereas exequaturs were heretofore issued to the following-named persons
at the dates mentioned and for the places specified, recognizing them as
consular officers, respectively, of the Kingdom of Hanover, of the
Electorate of Hesse, of the Duchy of Nassau, and of the city of
Frankfort, and declaring them free to exercise and enjoy functions,
powers, and privileges under the said exequaturs, viz:
FOR THE KINGDOM OF HANOVER.
Julius Frederich, consul at Galveston, Tex., July 28, 1848.
Otto Frank, consul at San Francisco, Cal., July 9, 1850.
Augustus Reichard, consul at New Orleans, La., January 22, 1853.
Kauffmann H. Muller, consul at Savannah, Ga., June 28, 1854.
G.C. Baurmeister, consul at Charleston, S.C., April 21, 1856.
Adolph Gosling, consul-general at New York, November 7, 1859.
G.W. Hennings, vice-consul at New York, July 2, 1860.
George Papendiek, consul at Boston, November 3, 1863.
Francis A. Hoffmann, consul at Chicago, July 26, 1864.
Carl C. Schoettler, consul at Philadelphia, Pa., September 23, 1864.
A. Rettberg, consul at Cleveland, Ohio, September 27, 1864.
A.C. Wilmaus, consul at Milwaukee, Wis., October 7, 1864.
Adolph Meier, consul at St. Louis, Mo., October 7, 1864.
Theodor Schwartz, consul at Louisville, Ky., October 12, 1864.
Carl F. Adae, consul at Cincinnati, Ohio, October 20, 1864.
Werner Dresel, consul at Baltimore, Md., July 25, 1866.
FOR THE ELECTORATE OF HESSE.
Theodor Wagner, consul at Galveston, Tex., March 7, 1857.
Clamor Friedrich Hagedorn, consul at Philadelphia, February 14, 1862.
Werner Dresel, consul at Baltimore, Md., September 26, 1864.
Friedrich Kuhne, consul at New York, September 30, 1864.
Richard Thiele, consul at New Orleans, La., October 18, 1864.
Carl Adae, consul at Cincinnati, Ohio, October 20, 1864.
Robert Barth, consul at St. Louis, Mo., April 11, 1865.
C.F. Mebius, consul at San Francisco, Cal., May 3, 1865.
FOR THE DUCHY OF NASSAU.
Wilhelm A. Kobbe, consul-general for the United States at New York,
November 19, 1846.
Friedrich Wilhelm Freudenthal, consul for Louisiana at New Orleans,
January 22, 1852.
Franz Moureau, consul for the western half of Texas at New Braunfels,
April 6, 1857.
Carl C. Finkler, consul for California at San Francisco, May 21, 1864.
Ludwig von Baumbach, consul for Wisconsin, September 27, 1864.
Otto Cuntz, consul for Massachusetts at Boston, October 7, 1864.
Friedrich Kuhne, consul at New York, September 30, 1864.
Carl F. Adae, consul for the State of Ohio, October 20, 1864.
Robert Barth, consul for Missouri, April 18, 1865.
FOR THE CITY OF FRANKFORT.
John H. Harjes, consul at Philadelphia, Pa., September 27, 1864.
F.A. Reuss, consul at St. Louis, Mo., September 30, 1864.
A.C. Wilmanns, consul for Wisconsin at Milwaukee, October 7, 1864.
Francis A. Hoffmann, consul for Chicago, Ill., October 12, 1864.
Carl F. Adae, consul for Ohio and Indiana, October 20, 1864.
Jacob Julius de Neufville, consul in New York, July 3, 1866.
And whereas the said countries, namely, the Kingdom of Hanover, the
Electorate of Hesse, the Duchy of Nassau, and the city of Frankfort,
have, in consequence of the late war between Prussia and Austria, been
united to the Crown of Prussia; and
Whereas His Majesty the King of Prussia has requested of the President
of the United States that the aforesaid exequaturs may, in consequence
of the before-recited premises, be revoked:
Now, therefore, these presents do declare that the above-named consular
officers are no longer recognized, and that the exequaturs heretofore
granted to them are hereby declared to be absolutely null and void from
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