Messages and Papers of Rutherford B. Hayes
by
James D. Richardson
Part 3 out of 6
conducting trade with foreign markets.
If we have equal commercial facilities, we need not fear competition
anywhere.
The laws have now directed a resumption of financial equality with
other nations, and have ordered a return to the basis of coin values.
It is of the greatest importance that the commercial condition now
fortunately attained shall be made permanent, and that our rapidly
increasing export trade shall not be allowed to suffer for want of the
ordinary means of communication with other countries.
The accompanying reports contain a valuable and instructive summary of
information with respect to our commercial interests in South America,
where an inviting field for the enterprise of our people is presented.
They are transmitted with the assurance that any measures that may be
enacted in furtherance of these important interests will meet with my
cordial approval.
R.B. HAYES.
EXECUTIVE MANSION, _Washington, January 7, 1879._
_To the House of Representatives_:
In answer to the resolution of the House of Representatives of the 4th
of December last, I transmit herewith a report from the Secretary of
State, with its accompanying papers.[23]
R.B. HAYES.
[Footnote 23: Correspondence relative to commercial relations with
Mexico.]
WASHINGTON, _January 13, 1879._
_To the Senate of the United States_:
In answer to a resolution of the Senate of the 3d of June last,
requesting a copy of correspondence between this Government and that
of Her Britannic Majesty in regard to inviting other maritime powers
to accede to the three rules of neutrality laid down in Article VI
of the treaty of May 8, 1871, I transmit herewith a report of the
Secretary of State, together with its accompanying papers.
R.B. HAYES.
EXECUTIVE MANSION, _January 20, 1879._
_To the Senate of the United States_:
In answer to a resolution of the Senate of the 17th of June last,
requesting the Commissioner of Agriculture to send to the Senate
certain reports on sheep husbandry, copies of the same, with
accompanying papers, received from the Commissioner of Agriculture for
this purpose, are herewith transmitted.
R.B. HAYES.
EXECUTIVE MANSION, _January 20, 1879._
_To the House of Representatives_:
In answer to resolution of the House of Representatives of the 16th
instant, requesting the Commissioner of Agriculture to forward to the
House any facts or statistics in his office on the subject of forestry
not heretofore reported, copies of the same, with accompanying
papers, received from the Commissioner for this purpose, are herewith
transmitted.
R.B. HAYES.
WASHINGTON, D.C., _January 23, 1879._
_To the House of Representatives_:
In answer to a resolution of the 25th of May last, requesting
information respecting the claim of Messrs. Carlos Butterfield & Co.
against the Government of Denmark, I transmit herewith to the House
of Representatives a report of the Secretary of State and its
accompanying papers.
R.B. HAYES.
WASHINGTON, _January 24, 1879_.
_To the House of Representatives_:
In answer to a resolution of the House of Representatives of the 7th
instant, I transmit herewith a report[24] from the Secretary of State,
with its accompanying papers.
R.B. HAYES.
[Footnote 24: Relating to the claim of John C. Landreau against the
Government of Peru.]
EXECUTIVE MANSION, _January 24, 1879_.
_To the Senate and House of Representatives_:
I transmit herewith, for the consideration of Congress, copies of
a report and accompanying papers received from the Secretary of the
Interior, upon a communication addressed to the President of the
United States in behalf of a certain claim of the Choctaw Nation
arising under the provisions of the Choctaw and Chickasaw treaty of
June 22, 1855.
R.B. HAYES.
EXECUTIVE MANSION, _January 31, 1879_.
_To the Senate of the United States_:
I transmit herewith a letter of the Secretary of the Treasury, in
relation to the suspension of the late collector and naval officer of
the port of New York, with accompanying documents.
In addition thereto I respectfully submit the following observations:
The custom-house in New York collects more than two-thirds of all the
customs revenues of the Government. Its administration is a matter not
of local interest merely, but is of great importance to the people
of the whole country. For a long period of time it has been used to
manage and control political affairs.
The officers suspended by me are and for several years have been
engaged in the active personal management of the party politics of
the city and State of New York. The duties of the offices held by
them have been regarded as of subordinate importance to their partisan
work. Their offices have been conducted as part of the political
machinery under their control. They have made the custom-house a
center of partisan political management. The custom-house should be
a business office. It should be conducted on business principles.
General James, the postmaster of New York City, writing on this
subject, says:
The post-office is a business institution, and should be run as such.
It is my deliberate judgment that I and my subordinates can do more
for the party of our choice by giving the people of this city a
good and efficient postal service than by controlling primaries or
dictating nominations.
The New York custom-house should be placed on the same footing
with the New York post-office. But under the suspended officers the
custom-house would be one of the principal political agencies in the
State of New York. To change this, they profess to believe, would be,
in the language of Mr. Cornell in his response, "to surrender their
personal and political rights."
Convinced that the people of New York and of the country generally
wish the New York custom-house to be administered solely with a view
to the public interest, it is my purpose to do all in my power
to introduce into this great office the reforms which the country
desires.
With my information of the facts in the case, and with a deep sense
of the responsible obligation imposed upon me by the Constitution "to
take care that the laws be faithfully executed," I regard it as
my plain duty to suspend the officers in question and to make the
nominations now before the Senate, in order that this important office
may be honestly and efficiently administered.
R.B. HAYES.
WASHINGTON, _February 6, 1879_.
_To the Senate of the United States_:
I transmit herewith, for the information of Congress, a report from
the Secretary of State, with the accompanying papers therein referred
to, in relation to the proceedings of the International Monetary
Conference held at Paris in August, 1878.
R.B. HAYES.
EXECUTIVE MANSION, _February 8, 1879_.
_To the Senate and House of Representatives_:
I transmit herewith, for the consideration of Congress, the report of
the commission appointed under the provisions of the act approved
May 3, 1878, entitled "An act authorizing the President of the United
States to make certain negotiations with the Ute Indians in the
State of Colorado," with copies of letters from the Secretary of the
Interior and the Commissioner of Indian Affairs, and accompanying
documents.
R.B. HAYES.
WASHINGTON, D.C., _February 15, 1879_.
_To the Senate and House of Representatives_:
I transmit herewith report from the Secretary of State, and
accompanying papers, in relation to proceedings of the International
Prison Congress of Stockholm, held in August last.
R.B. HAYES.
WASHINGTON, D.C., _February 18, 1879_.
_To the House of Representatives_:
I transmit herewith a report from the Secretary of State, dated the
17th instant, in relation to the destruction of the bark _Forest
Belle_ in Chinese waters in March last, submitted in compliance with
the resolution of the House of Representatives of February 4, 1879.
R.B. HAYES.
EXECUTIVE MANSION, _February 21, 1879_.
_To the Senate and House of Representatives_:
Referring to my communication to Congress under date of the 8th
instant, transmitting the report of the commission appointed under the
act entitled "An act authorizing the President of the United States
to make certain negotiations with the Ute Indians in the State of
Colorado," I submit herewith a copy of a letter from the Secretary of
the Interior and additional papers upon the same subject.
R.B. HAYES.
WASHINGTON, _February 28, 1879_.
_To the Senate of the United States_:
I transmit herewith a report from the Secretary of State, with its
accompanying papers, submitted in pursuance of a resolution of the
Senate of the 20th instant, in relation to railroads in Mexico.
R.B. HAYES.
WASHINGTON, _March 3, 1879._
_To the Senate and House of Representatives_:
I have received from the United States Centennial Commission their
final report, presenting a full exhibit of the result of the United
States Centennial Celebration and Exhibition of 1876, as required by
the act of June 1, 1872.
In transmitting this report for the consideration of Congress, I
express, I believe, the general judgment of the country, as well as my
own, in assigning to this exhibition a measure of success gratifying
to the pride and patriotism of our people and full of promise to the
great industrial and commercial interests of the nation. The very
ample and generous contributions which the foreign nations made to
the splendor and usefulness of the exhibition and the cordiality with
which their representatives took part in our national commemoration
deserve our profound acknowledgments. At this close of the great
services rendered by the United States Centennial Commission and the
Centennial board of finance, it gives me great pleasure to commend
to your attention and that of the people of the whole country the
laborious, faithful, and prosperous performances of their duties which
have marked the administration of their respective trusts.
R.B. HAYES.
VETO MESSAGE.
EXECUTIVE MANSION, _March 1, 1879._
_To the House of Representatives_:
After a very careful consideration of House bill 2423, entitled "An
act to restrict the immigration of Chinese to the United States,"
I herewith return it to the House of Representatives, in which it
originated, with my objections to its passage.
The bill, as it was sent to the Senate from the House of
Representatives, was confined in its provisions to the object named
in its title, which is that of "An act to restrict the immigration of
Chinese to the United States." The only means adopted to secure the
proposed object was the limitation on the number of Chinese passengers
which might be brought to this country by any one vessel to fifteen;
and as this number was not fixed in any proportion to the size
or tonnage of the vessel or by any consideration of the safety or
accommodation of these passengers, the simple purpose and effect of
the enactment were to repress this immigration to an extent falling
but little short of its absolute exclusion.
The bill, as amended in the Senate and now presented to me, includes
an independent and additional provision which aims at and in terms
requires the abrogation by this Government of Articles V and VI of the
treaty with China commonly called the Burlingame treaty, through the
action of the Executive enjoined by this provision of the act.
The Burlingame treaty, of which the ratifications were exchanged at
Peking November 23, 1869, recites as the occasion and motive of its
negotiation by the two Governments that "since the conclusion of the
treaty between the United States of America and the Ta Tsing Empire
(China) of the 18th of June, 1858, circumstances have arisen showing
the necessity of additional articles thereto," and proceeds to
an agreement as to said additional articles. These negotiations,
therefore, ending by the signature of the additional articles July
28, 1868, had for their object the completion of our treaty rights
and obligations toward the Government of China by the incorporation
of these new articles as thenceforth parts of the principal treaty
to which they are made supplemental. Upon the settled rules of
interpretation applicable to such supplemental negotiations the text
of the principal treaty and of these "additional articles thereto"
constitute one treaty from the conclusion of the new negotiations, in
all parts of equal and concurrent force and obligation between the
two Governments, and to all intents and purposes as if embraced in one
instrument.
The principal treaty, of which the ratifications were exchanged August
16, 1859, recites that "the United States of America and the Ta Tsing
Empire, desiring to maintain firm, lasting, and sincere friendship,
have resolved to renew, in a manner clear and positive, by means of a
treaty or general convention of peace, amity, and commerce, the rules
which shall in future be mutually observed in the intercourse of their
respective countries," and proceeds in its thirty articles to lay out
a careful and comprehensive system for the commercial relations of our
people with China. The main substance of all the provisions of this
treaty is to define and secure the rights of our people in respect
of access to, residence and protection in, and trade with China. The
actual provisions in our favor in these respects were framed to be,
and have been found to be, adequate and appropriate to the interests
of our commerce, and by the concluding article we receive the
important guaranty that--
Should at any time the Ta Tsing Empire grant to any nation, or the
merchants or citizens of any nation, any right, privilege, or favor,
connected either with navigation, commerce, political or other
intercourse, which is not conferred by this treaty, such right,
privilege, and favor shall at once freely inure to the benefit of
the United States, its public officers, merchants, and citizens.
Against this body of stipulations in our favor and this permanent
engagement of equality in respect of all future concessions to foreign
nations the general promise of permanent peace and good offices on
our part seems to be the only equivalent. For this the first article
undertakes as follows:
There shall be, as there have always been, peace and friendship
between the United States of America and the Ta Tsing Empire, and
between their people respectively. They shall not insult or oppress
each other for any trifling cause, so as to produce an estrangement
between them; and if any other nation should act unjustly or
oppressively, the United States will exert their good offices, on
being informed of the case, to bring about an amicable arrangement
of the question, thus showing their friendly feelings.
At the date of the negotiation of this treaty our Pacific possessions
had attracted a considerable Chinese emigration, and the advantages
and the inconveniences felt or feared therefrom had become more or
less manifest; but they dictated no stipulations on the subject to be
incorporated in the treaty. The year 1868 was marked by the striking
event of a spontaneous embassy from the Chinese Empire, headed by
an American citizen, Anson Burlingame, who had relinquished his
diplomatic representation of his own country in China to assume that
of the Chinese Empire to the United States and the European nations.
By this time the facts of the Chinese immigration and its nature and
influences, present and prospective, had become more noticeable and
were more observed by the population immediately affected and by this
Government. The principal feature of the Burlingame treaty was its
attention to and its treatment of the Chinese immigration and the
Chinese as forming, or as they should form, a part of our population.
Up to this time our uncovenanted hospitality to immigration, our
fearless liberality of citizenship, our equal and comprehensive
justice to all inhabitants, whether they abjured their foreign
nationality or not, our civil freedom, and our religious toleration
had made all comers welcome, and under these protections the Chinese
in considerable numbers had made their lodgment upon our soil.
The Burlingame treaty undertakes to deal with this situation, and its
fifth and sixth articles embrace its most important provisions in this
regard and the main stipulations in which the Chinese Government has
secured an obligatory protection of its subjects within our territory.
They read as follows:
ART. V. The United States of America and the Emperor of China
cordially recognize the inherent and inalienable right of man to
change his home and allegiance, and also the mutual advantage of
the free migration and emigration of their citizens and subjects
respectively from the one country to the other for purposes of
curiosity, of trade, or as permanent residents. The high contracting
parties therefore join in reprobating any other than an entirely
voluntary emigration for these purposes. They consequently agree to
pass laws making it a penal offense for a citizen of the United States
or Chinese subjects to take Chinese subjects either to the United
States or to any other foreign country, or for a Chinese subject or
citizen of the United States to take citizens of the United States
to China or to any other foreign country, without their free and
voluntary consent, respectively.
ART. VI. Citizens of the United States visiting or residing in China
shall enjoy the same privileges, immunities, or exemptions in respect
to travel or residence as may there be enjoyed by the citizens or
subjects of the most favored nation, and, reciprocally, Chinese
subjects visiting or residing in the United States shall enjoy the
same privileges, immunities, and exemptions in respect to travel or
residence as may there be enjoyed by the citizens or subjects of the
most favored nation. But nothing herein contained shall be held to
confer naturalization upon citizens of the United States in China,
nor upon the subjects of China in the United States.
An examination of these two articles in the light of the experience
then influential in suggesting their "necessity" will show that the
fifth article was framed in hostility to what seemed the principal
mischief to be guarded against, to wit, the introduction of Chinese
laborers by methods which should have the character of a forced and
servile importation, and not of a voluntary emigration of freemen
seeking our shores upon motives and in a manner consonant with the
system of our institutions and approved by the experience of the
nation. Unquestionably the adhesion of the Government of China to
these liberal principles of freedom in emigration, with which we were
so familiar and with which we were so well satisfied, was a great
advance toward opening that Empire to our civilization and religion,
and gave promise in the future of greater and greater practical
results in the diffusion throughout that great population of our arts
and industries, our manufactures, our material improvements, and the
sentiments of government and religion which seem to us so important to
the welfare of mankind. The first clause of this article secures this
acceptance by China of the American doctrines of free migration to and
fro among the peoples and races of the earth.
The second clause, however, in its reprobation of "any other than an
entirely voluntary emigration" by both the high contracting parties,
and in the reciprocal obligations whereby we secured the solemn and
unqualified engagement on the part of the Government of China "to pass
laws making it a penal offense for a citizen of the United States or
Chinese subjects to take Chinese subjects either to the United States
or to any other foreign country without their free and voluntary
consent," constitutes the great force and value of this article. Its
importance both in principle and in its practical service toward our
protection against servile importation in the guise of immigration can
not be overestimated. It commits the Chinese Government to active and
efficient measures to suppress this iniquitous system, where those
measures are most necessary and can be most effectual. It gives to
this Government the footing of a treaty right to such measures and
the means and opportunity of insisting upon their adoption and
of complaint and resentment at their neglect. The fifth article,
therefore, if it fall short of what the pressure of the later
experience of our Pacific States may urge upon the attention of this
Government as essential to the public welfare, seems to be in the
right direction and to contain important advantages which once
relinquished can not be easily recovered.
The second topic which interested the two Governments under the actual
condition of things which prompted the Burlingame treaty was adequate
protection, under the solemn and definite guaranties of a treaty,
of the Chinese already in this country and those who should seek
our shores. This was the object, and forms the subject of the sixth
article, by whose reciprocal engagement the citizens and subjects of
the two Governments, respectively, visiting or residing in the
country of the other are secured the same privileges, immunities,
or exemptions there enjoyed by the citizens or subjects of the most
favored nations. The treaty of 1858, to which these articles are made
supplemental, provides for a great amount of privilege and protection,
both of person and property, to American citizens in China, but it is
upon this sixth article that the main body of the treaty rights
and securities of the Chinese already in this country depends. Its
abrogation, were the rest of the treaty left in force, would leave
them to such treatment as we should voluntarily accord them by our
laws and customs. Any treaty obligation would be wanting to restrain
our liberty of action toward them, or to measure or sustain the right
of the Chinese Government to complaint or redress in their behalf.
The lapse of ten years since the negotiation of the Burlingame treaty
has exhibited to the notice of the Chinese Government, as well as to
our own people, the working of this experiment of immigration in great
numbers of Chinese laborers to this country, and their maintenance
here of all the traits of race, religion, manners, and customs,
habitations, mode of life, segregation here, and the keeping up of
the ties of their original home, which stamp them as strangers and
sojourners, and not as incorporated elements of our national life and
growth. This experience may naturally suggest the reconsideration of
the subject as dealt with by the Burlingame treaty, and may properly
become the occasion of more and circumspect recognition, in renewed
negotiations, of the difficulties surrounding this political and
social problem. It may well be that, to the apprehension of the
Chinese Government no less than our own, the simple provisions of the
Burlingame treaty may need to be replaced by more careful methods,
securing the Chinese and ourselves against a larger and more rapid
infusion of this foreign race than our system of industry and
society can take up and assimilate with ease and safety. This ancient
Government, ruling a polite and sensitive people, distinguished by
a high sense of national pride, may properly desire an adjustment of
their relations with us which would in all things confirm and in no
degree endanger the permanent peace and amity and the growing commerce
and prosperity which it has been the object and the effect of our
existing treaties to cherish and perpetuate.
I regard the very grave discontents of the people of the Pacific
States with the present working of the Chinese immigration, and their
still graver apprehensions therefrom in the future, as deserving
the most serious attention of the people of the whole country and a
solicitous interest on the part of Congress and the Executive. If this
were not my own judgment, the passage of this bill by both Houses of
Congress would impress upon me the seriousness of the situation, when
a majority of the representatives of the people of the whole country
had thought fit to justify so serious a measure of relief.
The authority of Congress to terminate a treaty with a foreign power
by expressing the will of the nation no longer to adhere to it is
as free from controversy under our Constitution as is the further
proposition that the power of making new treaties or modifying
existing treaties is not lodged by the Constitution in Congress, but
in the President, by and with the advice and consent of the Senate, as
shown by the concurrence of two-thirds of that body. A denunciation of
a treaty by any government is confessedly justifiable only upon some
reason both of the highest justice and of the highest necessity. The
action of Congress in the matter of the French treaties in 1798, if
it be regarded as an abrogation by this nation of a subsisting treaty,
strongly illustrates the character and degree of justification which
was then thought suitable to such a proceeding. The preamble of the
act recites that the--
Treaties concluded between the United States and France have been
repeatedly violated on the part of the French Government, and the
just claims of the United States for reparation of the injuries
so committed have been refused, and their attempts to negotiate an
amicable adjustment of all complaints between the two nations have
been repelled with indignity.
And that--
Under authority of the French Government there is yet pursued against
the United States a system of predatory violence, infracting the said
treaties and hostile to the rights of a free and independent nation.
The enactment, as a logical consequence of these recited facts,
declares--
That the United States are of right freed and exonerated from the
stipulations of the treaties and of the consular convention heretofore
concluded between the United States and France, and that the same
shall not henceforth be regarded as legally obligatory on the
Government or citizens of the United States.
The history of the Government shows no other instance of an abrogation
of a treaty by Congress.
Instances have sometimes occurred where the ordinary legislation
of Congress has, by its conflict with some treaty obligation of the
Government toward a foreign power, taken effect as an _infraction_
of the treaty, and been judicially declared to be operative to that
result; but neither such legislation nor such judicial sanction of the
same has been regarded as an _abrogation_, even for the moment, of
the treaty. On the contrary, the treaty in such case still subsists
between the governments, and the casual infraction is repaired by
appropriate satisfaction in maintenance of the treaty.
The bill before me does not enjoin upon the President the abrogation
of the entire Burlingame treaty, much less of the principal treaty of
which it is made the supplement. As the power of modifying an existing
treaty, whether by adding or striking out provisions, is a part of
the treaty-making power under the Constitution, its exercise is not
competent for Congress, nor would the assent of China to this partial
abrogation of the treaty make the action of Congress in thus procuring
an amendment of a treaty a competent exercise of authority under the
Constitution. The importance, however, of this special consideration
seems superseded by the principle that a denunciation of a part of a
treaty not made by the terms of the treaty itself separable from
the rest is a denunciation of the whole treaty. As the other high
contracting party has entered into no treaty obligations except such
as include the part denounced, the denunciation by one party of the
part necessarily liberates the other party from the whole treaty.
I am convinced that, whatever urgency might in any quarter or by any
interest be supposed to require an instant suppression of further
immigration from China, no reasons can require the immediate
withdrawal of our treaty protection of the Chinese already in this
country, and no circumstances can tolerate an exposure of our citizens
in China, merchants or missionaries, to the consequences of so sudden
an abrogation of their treaty protection. Fortunately, however, the
actual recession in the flow of the emigration from China to the
Pacific Coast, shown by trustworthy statistics, relieves us from any
apprehension that the treatment of the subject in the proper course of
diplomatic negotiations will introduce any new features of discontent
or disturbance among the communities directly affected. Were such
delay fraught with more inconveniences than have ever been suggested
by the interests most earnest in promoting this legislation, I can not
but regard the summary disturbance of our existing treaties with
China as greatly more inconvenient to much wider and more permanent
interests of the country.
I have no occasion to insist upon the more general considerations of
interest and duty which sacredly guard the faith of the nation, in
whatever form of obligation it may have been given. These sentiments
animate the deliberations of Congress and pervade the minds of our
whole people. Our history gives little occasion for any reproach in
this regard; and in asking the renewed attention of Congress to this
bill I am persuaded that their action will maintain the public duty
and the public honor.
R.B. HAYES.
PROCLAMATION.
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA.
A PROCLAMATION.
Whereas the final adjournment of the Forty-fifth Congress without
making the usual and necessary appropriations for the legislative,
executive, and judicial expenses of the Government for the fiscal
year ending June 30, 1880, and without making the usual and necessary
appropriations for the support of the Army for the same fiscal year,
presents an extraordinary occasion requiring the President to exercise
the power vested in him by the Constitution to convene the Houses
of Congress in anticipation of the day fixed by law for their next
meeting:
Now, therefore, I, Rutherford B. Hayes, President of the United
States, do, by virtue of the power to this end in me vested by the
Constitution, convene both Houses of Congress to assemble at their
respective chambers at 12 o'clock noon on Tuesday, the 18th day of
March instant, then and there to consider and determine such measures
as in their wisdom their duty and the welfare of the people may seem
to demand.
[SEAL.]
In witness whereof I have hereunto set my hand and caused the seal of
the United States to be affixed.
Done at the city of Washington, this 4th day of March, A.D. 1879, and
of the Independence of the United States of America the one hundred
and third.
R.B. HAYES.
By the President:
WM. M. EVARTS,
_Secretary of State_.
SPECIAL SESSION MESSAGE.
WASHINGTON, _March 19, 1879_.
_Fellow-Citizens of the Senate and House of Representatives:_
The failure of the last Congress to make the requisite appropriations
for legislative and judicial purposes, for the expenses of the several
Executive Departments of the Government, and for the support of
the Army has made it necessary to call a special session of the
Forty-sixth Congress.
The estimates of the appropriations needed which were sent to Congress
by the Secretary of the Treasury at the opening of the last session
are renewed, and are herewith transmitted to both the Senate and the
House of Representatives.
Regretting the existence of the emergency which requires a special
session of Congress at a time when it is the general judgment of the
country that the public welfare will be best promoted by permanency in
our legislation and by peace and rest, I commend these few necessary
measures to your considerate attention.
RUTHERFORD B. HAYES.
SPECIAL MESSAGES.
WASHINGTON, _March 20, 1879_.
_To the Senate of the United States_:
In compliance with the resolution of the Senate of the 3d instant,
calling for the reports of Gustavus Goward on the Samoan Islands,
I transmit herewith a report from the Secretary of State, with the
accompanying papers.
R.B. HAYES.
EXECUTIVE MANSION, _April 18, 1879_.
_To the Senate of the United States_:
In compliance with a resolution of the Senate of the 15th instant, I
transmit herewith a copy of the report of the commission appointed by
the President on the 15th of March, 1872, relating to the different
interoceanic canal surveys and the practicability of the construction
of a ship canal across this continent.
R.B. HAYES.
EXECUTIVE MANSION, _May 15, 1879_.
_To the Senate of the United States_:
In response to a resolution of the Senate of the 7th instant,
requesting information in reference to an alleged occupation of a
portion of the Indian Territory by white settlers, etc., I transmit
herewith a copy of my proclamation dated April 26, 1879;[25] also
copies of the correspondence and papers on file and of record in the
Department of the Interior and the War Department touching the subject
of the resolution.
R.B. HAYES.
[Footnote 25: See pp. 547-548.]
EXECUTIVE MANSION, _May 26, 1879_.
_To the Senate of the United States_:
In response to a resolution of the Senate of the 14th instant,
I transmit herewith a communication[26] from the Secretary of the
Interior and accompanying papers.
R.B. HAYES.
[Footnote 26: Relating to lands in the Indian Territory acquired by the
treaties of 1866.]
EXECUTIVE MANSION, _June 5, 1879_.
_To the Senate and House of Representatives_:
I transmit herewith the "proceedings and report" of the board of
officers convened by Special Orders, No. 78, Headquarters of the
Army, Washington, April 12, 1878, in the case of Fitz John Porter. The
report of the board was made in March last, but the official record of
the proceedings did not reach me until the 3d instant.
I have given to this report such examination as satisfies me that
I ought to lay the proceedings and conclusions of the board before
Congress. As I am without power, in the absence of legislation, to act
upon the recommendations of the report further than by submitting the
same to Congress, the proceedings and conclusions of the board are
transmitted for the information of Congress and such action as in your
wisdom shall seem expedient and just.
R.B. HAYES.
WASHINGTON, _June 13, 1879_.
_To the House of Representatives_:
I transmit herewith, in compliance with the resolution of the House
of Representatives of the 29th ultimo, a report of the Secretary of
State relative to the steps taken by this Government to promote the
establishment of an interoceanic canal across or near the Isthmus of
Darien.
R.B. HAYES.
WASHINGTON, _June 23, 1879_.
_To the Senate of the United States_:
I transmit herewith to the Senate a report from the Secretary
of State, in response to a resolution of that body of the 20th
instant, calling for the proceedings and accompanying papers of
the International Silver Conference held in Paris in 1878.
R.B. HAYES.
EXECUTIVE MANSION, _June 30, 1879_.
_To the Senate and House of Representatives_:
The bill making provision for the payment of the fees of United States
marshals and their general deputies, which I have this day returned
to the House of Representatives, in which it originated, with my
objections,[27] having upon its reconsideration by that body failed
to become a law, I respectfully call your attention to the immediate
necessity of making some adequate provision for the due and efficient
execution by the marshals and deputy marshals of the United States of
the constant and important duties enjoined upon them by the existing
laws. All appropriations to provide for the performance of these
indispensable duties expire to-day. Under the laws prohibiting public
officers from involving the Government in contract liabilities beyond
actual appropriations, it is apparent that the means at the disposal
of the executive department for executing the laws through the
regular ministerial officers will after to-day be left inadequate. The
suspension of these necessary functions in the orderly administration
of the first duties of government for the shortest period is
inconsistent with the public interests, and at any moment may prove
inconsistent with the public safety.
It is impossible for me to look without grave concern upon a state of
things which will leave the public service thus unprovided for and
the public interests thus unprotected, and I earnestly urge upon your
attention the necessity of making immediate appropriations for the
maintenance of the service of the marshals and deputy marshals for the
fiscal year which commences to-morrow.
RUTHERFORD B. HAYES.
[Footnote 27: See pp. 545-547.]
WASHINGTON, _July 1, 1879_.
_To the Senate of the United States_:
In answer to a resolution of the Senate of the 28th June, 1879,
requesting a copy of any correspondence which may have passed between
the Department of State and the Republic of Mexico in regard to the
proposed Austin-Topolovampo Railroad survey across the northern States
of that country, I transmit herewith the report of the Secretary of
State upon the subject.
R.B. HAYES.
VETO MESSAGES.
EXECUTIVE MANSION, _April 29, 1879_.
_To the House of Representatives_:
I have maturely considered the important questions presented by the
bill entitled "An act making appropriations for the support of
the Army for the fiscal year ending June 30, 1880, and for other
purposes," and I now return it to the House of Representatives, in
which it originated, with my objections to its approval.
The bill provides in the usual form for the appropriations required
for the support of the Army during the next fiscal year. If it
contained no other provisions, it would receive my prompt approval. It
includes, however, further legislation, which, attached, as it is, to
appropriations which are requisite for the efficient performance
of some of the most necessary duties of the Government, involves
questions of the gravest character. The sixth section of the bill is
amendatory of the statute now in force in regard to the authority of
persons in the civil, military, and naval service of the United States
"at the place where any general or special election is held in any
State." This statute was adopted February 25, 1865, after a protracted
debate in the Senate, and almost without opposition in the House
of Representatives, by the concurrent votes of both of the leading
political parties of the country, and became a law by the approval of
President Lincoln. It was reenacted in 1874 in the Revised Statutes of
the United States, sections 2002 and 5528, which are as follows:
SEC. 2002. No military or naval officer, or other person
engaged in the civil, military, or naval service of the United
States, shall order, bring, keep, or have under his authority
or control any troops or armed men at the place where any
general or special election is held in any State, unless it be
necessary to repel the armed enemies of the United States or
to keep the peace at the polls.
SEC. 5528. Every officer of the Army or Navy, or other person
in the civil, military, or naval service of the United States,
who orders, brings, keeps, or has under his authority or
control any troops or armed men at any place where a general
or special election is held in any State, unless such force
be necessary to repel armed enemies of the United States or
to keep the peace at the polls, shall be fined not more than
$5,000 and surfer imprisonment at hard labor not less than
three months nor more than five years.
The amendment proposed to this statute in the bill before me omits
from both of the foregoing sections the words "or to keep the peace
at the polls," The effect of the adoption of this amendment may be
considered--
First. Upon the right of the United States Government to use military
force to keep the peace at the elections for Members of Congress; and
Second. Upon the right of the Government, by civil authority, to
protect these elections from violence and fraud.
In addition to the sections of the statute above quoted, the following
provisions of law relating to the use of the military power at the
elections are now in force:
SEC. 2003. No officer of the Army or Navy of the United States
shall prescribe or fix, or attempt to prescribe or fix, by
proclamation, order, or otherwise, the qualifications of
voters in any State, or in any manner interfere with the
freedom of any election in any State, or with the exercise of
the free right of suffrage in any State.
SEC. 5529. Every officer or other person in the military or
naval service who, by force, threat, intimidation, order,
advice, or otherwise, prevents, or attempts to prevent, any
qualified voter of any State from freely exercising the right
of suffrage at any general or special election in such State
shall be fined not more than $5,000 and imprisoned at hard
labor not more than five years.
SEC. 5530. Every officer of the Army or Navy who prescribes
or fixes, or attempts to prescribe or fix, whether by
proclamation, order, or otherwise, the qualifications of
voters at any election in any State shall be punished as
provided in the preceding section.
SEC. 5531. Every officer or other person in the military or
naval service who, by force, threat, intimidation, order, or
otherwise, compels, or attempts to compel, any officer holding
an election in any State to receive a vote from a person not
legally qualified to vote, or who imposes, or attempts to
impose, any regulations for conducting any general or special
election in a State different from those prescribed by law, or
who interferes in any manner with any officer of an election
in the discharge of his duty, shall be punished as provided in
section 5529.
SEC. 5532. Every person convicted of any of the offenses
specified in the five preceding sections shall, in addition to
the punishments therein severally prescribed, be disqualified
from holding any office of honor, profit, or trust under
the United States; but nothing in those sections shall be
construed to prevent any officer, soldier, sailor, or marine
from exercising the right of suffrage in any election district
to which he may belong, if otherwise qualified according to
the laws of the State in which he offers to vote.
The foregoing enactments would seem to be sufficient to prevent
military interference with the elections. But the last Congress, to
remove all apprehension of such interference, added to this body of
law section 15 of an act entitled "An act making appropriations for
the support of the Army for the fiscal year ending June 30, 1879, and
for other purposes," approved June 18, 1878, which is as follows:
SEC. 15. From and after the passage of this act it shall not
be lawful to employ any part of the Army of the United States,
as a _posse comitatus_ or otherwise, for the purpose of
executing the laws, except in such cases and under such
circumstances as such employment of said force may be
expressly authorized by the Constitution or by act of
Congress; and no money appropriated by this act shall be used
to pay any of the expenses incurred in the employment of any
troops in violation of this section; and any person willfully
violating the provisions of this section shall be deemed
guilty of a misdemeanor, and on conviction thereof shall be
punished by fine not exceeding $10,000 or imprisonment not
exceeding two years, or by both such fine and imprisonment.
This act passed the Senate, after full consideration, without a single
vote recorded against it on its final passage, and, by a majority
of more than two-thirds, it was concurred in by the House of
Representatives.
The purpose of the section quoted was stated in the Senate by one of
its supporters as follows:
Therefore I hope, without getting into any controversy about
the past, but acting wisely for the future, that we shall
take away the idea that the Army can be used by a general or
special deputy marshal, or any marshal, merely for election
purposes, as a posse, ordering them about the polls or
ordering them anywhere else, when there is an election going
on, to prevent disorders or to suppress disturbances that
should be suppressed by the peace officers of the State; or,
if they must bring others to their aid they should summon the
unorganized citizens, and not summon the officers and men of
the Army as _posse comitatus_ to quell disorders, and thus
get up a feeling which will be disastrous to peace among the
people of the country.
In the House of Representatives the object of the act of 1878 was
stated by the gentleman who had it in charge in similar terms. He
said:
But these are all minor points and insignificant questions
compared with the great principle which was incorporated by
the House in the bill in reference to the use of the Army
in time of peace. The Senate had already conceded what they
called and what we might accept as the principle, but they
had stricken out the penalty, and had stricken out the word
"_expressly_" so that the Army might be used in all cases
where _implied_ authority might be inferred. The House
committee planted themselves firmly upon the doctrine that
rather than yield this fundamental principle, for which for
three years this House had struggled, they would allow
the bill to fail, notwithstanding the reforms which we had
secured, regarding these reforms as of but little consequence
alongside the great principle that the Army of the United
States, in time of peace, should be under the control of
Congress and obedient to its laws. After a long and protracted
negotiation, the Senate committee have conceded that principle
in all its length and breadth, including the penalty, which
the Senate had stricken out. We bring you back, therefore,
a report, with the alteration of a single word, which the
lawyers assure me is proper to be made, restoring to this bill
the principle for which we have contended so long, and which
is so vital to secure the rights and liberties of the people.
* * * * *
Thus have we this day secured to the people of this country
the same great protection against a standing army which cost
a struggle of two hundred years for the Commons of England to
secure for the British people.
From this brief review of the subject it sufficiently appears that
under existing laws there can be no military interference with the
elections. No case of such interference has, in fact, occurred since
the passage of the act last referred to. No soldier of the United
States has appeared under orders at any place of election in any
State. No complaint even of the presence of United States troops has
been made in any quarter. It may therefore be confidently stated
that there is no necessity for the enactment of section 6 of the bill
before me to prevent military interference with the elections. The
laws already in force are all that is required for that end.
But that part of section 6 of this bill which is significant and
vitally important is the clause which, if adopted, will deprive the
civil authorities of the United States of all power to keep the peace
at the Congressional elections. The Congressional elections in every
district, in a very important sense, are justly a matter of political
interest and concern throughout the whole country. Each State, every
political party, is entitled to the share of power which is conferred
by the legal and constitutional suffrage. It is the right of every
citizen possessing the qualifications prescribed by law to cast one
unintimidated ballot and to have his ballot honestly counted. So long
as the exercise of this power and the enjoyment of this right are
common and equal, practically as well as formally, submission to the
results of the suffrage will be accorded loyally and cheerfully, and
all the departments of Government will feel the true vigor of the
popular will thus expressed.
Two provisions of the Constitution authorize legislation by Congress
for the regulation of the Congressional elections.
Section 4 of Article I of the Constitution declares--
The times, places, and manner of holding elections for
Senators and Representatives shall be prescribed in each State
by the legislature thereof; but the Congress may at any time,
by law, make or alter such regulations, except as to the
places of choosing Senators.
The fifteenth amendment of the Constitution is as follows:
SEC. 1. The right of citizens of the United States to vote
shall not be denied or abridged by the United States or by
any State on account of race, color, or previous condition of
servitude.
SEC. 2. The Congress shall have power to enforce this article
by appropriate legislation.
The Supreme Court has held that this amendment invests the citizens of
the United States with a new constitutional right which is within
the protecting power of Congress. That right the court declares to
be exemption from discrimination in the exercise of the elective
franchise on account of race, color, or previous condition of
servitude. The power of Congress to protect this right by appropriate
legislation is expressly affirmed by the court.
National legislation to provide safeguards for free and honest
elections is necessary, as experience has shown, not only to secure
the right to vote to the enfranchised race at the South, but also to
prevent fraudulent voting in the large cities of the North. Congress
has therefore exercised the power conferred by the Constitution, and
has enacted certain laws to prevent discriminations on account of
race, color, or previous condition of servitude, and to punish fraud,
violence, and intimidation at Federal elections. Attention is called
to the following sections of the Revised Statutes of the United
States, viz:
Section 2004, which guarantees to all citizens the right to vote,
without distinction on account of race, color, or previous condition
of servitude.
Sections 2005 and 2006, which guarantee to all citizens equal
opportunity, without discrimination, to perform all the acts required
by law as a prerequisite or qualification for voting.
Section 2022, which authorizes the United States marshal and
his deputies to keep the peace and preserve order at the Federal
elections.
Section 2024, which expressly authorizes the United States marshal
and his deputies to summon a _posse comitatus_ whenever they or any of
them are forcibly resisted in the execution of their duties under the
law or are prevented from executing such duties by violence.
Section 5522, which provides for the punishment of the crime of
interfering with the supervisors of elections and deputy marshals in
the discharge of their duties at the elections of Representatives in
Congress.
These are some of the laws on this subject which it is the duty of
the executive department of the Government to enforce. The intent and
effect of the sixth section of this bill is to prohibit all the civil
officers of the United States, under penalty of fine and imprisonment,
from employing any adequate civil force for this purpose at the place
where their enforcement is most necessary, namely, at the places
where the Congressional elections are held. Among the most valuable
enactments to which I have referred are those which protect the
supervisors of Federal elections in the discharge of their duties at
the polls. If the proposed legislation should become the law, there
will be no power vested in any officer of the Government to protect
from violence the officers of the United States engaged in the
discharge of their duties. Their rights and duties under the law will
remain, but the National Government will be powerless to enforce its
own statutes. The States may employ both military and civil power to
keep the peace and to enforce the laws at State elections. It is
now proposed to deny to the United States even the necessary civil
authority to protect the national elections. No sufficient reason has
been given for this discrimination in favor of the State and against
the national authority. If well-founded objections exist against the
present national election laws, all good citizens should unite in
their amendment. The laws providing the safeguards of the elections
should be impartial, just, and efficient. They should, if possible,
be so nonpartisan and fair in their operation that the minority--the
party out of power--will have no just grounds to complain. The present
laws have in practice unquestionably conduced to the prevention of
fraud and violence at the elections. In several of the States members
of different political parties have applied for the safeguards which
they furnish. It is the right and duty of the National Government to
enact and enforce laws which will secure free and fair Congressional
elections. The laws now in force should not be repealed except in
connection with the enactment of measures which will better accomplish
that important end. Believing that section 6 of the bill before me
will weaken, if it does not altogether take away, the power of the
National Government to protect the Federal elections by the civil
authorities, I am forced to the conclusion that it ought not to
receive my approval.
This section is, however, not presented to me as a separate and
independent measure, but is, as has been stated, attached to the bill
making the usual annual appropriations for the support of the Army. It
makes a vital change in the election laws of the country, which is in
no way connected with the use of the Army. It prohibits, under heavy
penalties, any person engaged in the civil service of the United
States from having any force at the place of any election, prepared to
preserve order, to make arrests, to keep the peace, or in any manner
to enforce the laws. This is altogether foreign to the purpose of
an Army appropriation bill. The practice of tacking to appropriation
bills measures not pertinent to such bills did not prevail until more
than forty years after the adoption of the Constitution. It has become
a common practice. All parties when in power have adopted it. Many
abuses and great waste of public money have in this way crept into
appropriation bills. The public opinion of the country is against it.
The States which have recently adopted constitutions have generally
provided a remedy for the evil by enacting that no law shall contain
more than one subject, which shall be plainly expressed in its
title. The constitutions of more than half of the States contain
substantially this provision. The public welfare will be promoted in
many ways by a return to the early practice of the Government and to
the true principle of legislation, which requires that every measure
shall stand or fall according to its own merits. If it were understood
that to attach to an appropriation bill a measure irrelevant to the
general object of the bill would imperil and probably prevent its
final passage and approval, a valuable reform in the parliamentary
practice of Congress would be accomplished. The best justification
that has been offered for attaching irrelevant riders to appropriation
bills is that it is done for convenience sake, to facilitate the
passage of measures which are deemed expedient by all the branches
of Government which participate in legislation. It can not be claimed
that there is any such reason for attaching this amendment of the
election laws to the Army appropriation bill. The history of the
measure contradicts this assumption. A majority of the House of
Representatives in the last Congress was in favor of section 6 of this
bill. It was known that a majority of the Senate was opposed to
it, and that as a separate measure it could not be adopted. It was
attached to the Army appropriation bill to compel the Senate to
assent to it. It was plainly announced to the Senate that the Army
appropriation bill would not be allowed to pass unless the proposed
amendments of the election laws were adopted with it. The Senate
refused to assent to the bill on account of this irrelevant section.
Congress thereupon adjourned without passing an appropriation bill for
the Army, and the present extra session of the Forty-sixth Congress
became necessary to furnish the means to carry on the Government.
The ground upon which the action of the House of Representatives is
defended has been distinctly stated by many of its advocates. A week
before the close of the last session of Congress the doctrine in
question was stated by one of its ablest defenders as follows:
It is our duty to repeal these laws. It is not worth while
to attempt the repeal except upon an appropriation bill.
The Republican Senate would not agree to nor the Republican
President sign a bill for such repeal. Whatever objection to
legislation upon appropriation bills may be made in ordinary
cases does not apply where free elections and the liberty of
the citizens are concerned. * * * We have the power to vote
money; let us annex conditions to it, and insist upon the
redress of grievances.
By another distinguished member of the House it was said:
The right of the Representatives of the people to withhold
supplies is as old as English liberty. History records
numerous instances where the Commons, feeling that the people
were oppressed by laws that the Lords would not consent
to repeal by the ordinary methods of legislation, obtained
redress at last by refusing appropriations unless accompanied
by relief measures.
That a question of the gravest magnitude, and new in this country, was
raised by this course of proceeding, was fully recognized also by its
defenders in the Senate. It was said by a distinguished Senator:
Perhaps no greater question, in the form we are brought to
consider it, was ever considered by the American Congress
in time of peace; for it involves not merely the merits or
demerits of the laws which the House bill proposes to repeal,
but involves the rights, the privileges, the powers, the
duties of the two branches of Congress and of the President
of the United States. It is a vast question; it is a question
whose importance can scarcely be estimated; it is a question
that never yet has been brought so sharply before the American
Congress and the American people as it may be now. It is
a question which sooner or later must be decided, and the
decision must determine what are the powers of the House of
Representatives under the Constitution, and what is the duty
of that House in the view of the framers of that Constitution,
according to its letter and its spirit.
Mr. President, I should approach this question, if I were in
the best possible condition to speak and to argue it, with
very grave diffidence, and certainly with the utmost anxiety;
for no one can think of it as long and as carefully as I have
thought of it without seeing that we are at the beginning,
perhaps, of a struggle that may last as long in this country
as a similar struggle lasted in what we are accustomed to call
the mother land. There the struggle lasted for two centuries
before it was ultimately decided. It is not likely to last so
long here, but it may last until every man in this chamber is
in his grave. It is the question whether or no the House of
Representatives has a right to say, "We will grant supplies
only upon condition that grievances are redressed. We are
the representatives of the taxpayers of the Republic. We, the
House of Representatives, alone have the right to originate
money bills. We, the House of Representatives, have alone the
right to originate bills which grant the money of the people.
The Senate represents States; we represent the taxpayers
of the Republic. We, therefore, by the very terms of the
Constitution, are charged with the duty of originating the
bills which grant the money of the people. We claim the right,
which the House of Commons in England established after two
centuries of contest, to say that we will not grant the money
of the people unless there is a redress of grievances."
Upon the assembling of this Congress, in pursuance of a call for
an extra session, which was made necessary by the failure of the
Forty-fifth Congress to make the needful appropriations for the
support of the Government, the question was presented whether the
attempt made in the last Congress to ingraft by construction a new
principle upon the Constitution should be persisted in or not. This
Congress has ample opportunity and time to pass the appropriation
bills, and also to enact any political measures which may be
determined upon in separate bills by the usual and orderly methods
of proceeding. But the majority of both Houses have deemed it wise to
adhere to the principles asserted and maintained in the last Congress
by the majority of the House of Representatives. That principle is
that the House of Representatives has the sole right to originate
bills for raising revenue, and therefore has the right to withhold
appropriations upon which the existence of the Government may depend
unless the Senate and the President shall give their assent to any
legislation which the House may see fit to attach to appropriation
bills. To establish this principle is to make a radical, dangerous,
and unconstitutional change in the character of our institutions. The
various departments of the Government and the Army and the Navy
are established by the Constitution or by laws passed in pursuance
thereof. Their duties are clearly defined and their support is
carefully provided for by law. The money required for this purpose has
been collected from the people and is now in the Treasury, ready to
be paid out as soon as the appropriation bills are passed. Whether
appropriations are made or not, the collection of the taxes will go
on. The public money will accumulate in the Treasury. It was not the
intention of the framers of the Constitution that any single branch of
the Government should have the power to dictate conditions upon
which this treasure should be applied to the purpose for which it was
collected. Any such intention, if it had been entertained, would have
been plainly expressed in the Constitution.
That a majority of the Senate now concurs in the claim of the House
adds to the gravity of the situation, but does not alter the
question at issue. The new doctrine, if maintained, will result in
a consolidation of unchecked and despotic power in the House of
Representatives. A bare majority of the House will become the
Government. The Executive will no longer be what the framers of
the Constitution intended--an equal and independent branch of the
Government. It is clearly the constitutional duty of the President to
exercise his discretion and judgment upon all bills presented to him
without constraint or duress from any other branch of the Government.
To say that a majority of either or both of the Houses of Congress may
insist upon the approval of a bill under the penalty of stopping all
of the operations of the Government for want of the necessary supplies
is to deny to the Executive that share of the legislative power which
is plainly conferred by the second section of the seventh article
of the Constitution. It strikes from the Constitution the qualified
negative of the President. It is said that this should be done
because it is the peculiar function of the House of Representatives to
represent the will of the people. But no single branch or department
of the Government has exclusive authority to speak for the American
people. The most authentic and solemn expression of their will
is contained in the Constitution of the United States. By that
Constitution they have ordained and established a Government whose
powers are distributed among coordinate branches, which, as far as
possible consistently with a harmonious cooperation, are absolutely
independent of each other. The people of this country are unwilling to
see the supremacy of the Constitution replaced by the omnipotence of
any one department of the Government.
The enactment of this bill into a law will establish a precedent which
will tend to destroy the equal independence of the several branches
of the Government. Its principle places not merely the Senate and the
Executive, but the judiciary also, under the coercive dictation of
the House. The House alone will be the judge of what constitutes a
grievance, and also of the means and measure of redress. An act of
Congress to protect elections is now the grievance complained of; but
the House may on the same principle determine that any other act of
Congress, a treaty made by the President with the advice and consent
of the Senate, a nomination or appointment to office, or that a
decision or opinion of the Supreme Court is a grievance, and that the
measure of redress is to withhold the appropriations required for the
support of the offending branch of the Government.
Believing that this bill is a dangerous violation of the spirit and
meaning of the Constitution, I am compelled to return it to the House
in which it originated without my approval. The qualified negative
with which the Constitution invests the President is a trust that
involves a duty which he can not decline to perform. With a firm and
conscientious purpose to do what I can to preserve unimpaired the
constitutional powers and equal independence, not merely of the
Executive, but of every branch of the Government, which will be
imperiled by the adoption of the principle of this bill, I desire
earnestly to urge upon the House of Representatives a return to the
wise and wholesome usage of the earlier days of the Republic, which
excluded from appropriation bills all irrelevant legislation. By
this course you will inaugurate an important reform in the method of
Congressional legislation; your action will be in harmony with the
fundamental principles of the Constitution and the patriotic sentiment
of nationality which is their firm support, and you will restore to
the country that feeling of confidence and security and the
repose which are so essential to the prosperity of all of our
fellow-citizens.
RUTHERFORD B. HAYES.
_To the House of Representatives_:
After a careful consideration of the bill entitled "An act to prohibit
military interference at elections," I return it to the House of
Representatives, in which it originated, with the following objections
to its approval:
In the communication sent to the House of Representatives on the 29th
of last month, returning to the House without my approval the bill
entitled "An act making appropriations for the support of the Army
for the fiscal year ending June 30, 1880, and for other purposes,"
I endeavored to show, by quotations from the statutes of the United
States now in force and by a brief statement of facts in regard to
recent elections in the several States, that no additional legislation
was necessary to prevent interference with the elections by the
military or naval forces of the United States. The fact was presented
in that communication that at the time of the passage of the act of
June 18, 1878, in relation to the employment of the Army as a _posse
comitatus_ or otherwise, it was maintained by its friends that it
would establish a vital and fundamental principle which would secure,
to the people protection against a standing army. The fact was also
referred to that since the passage of this act Congressional, State,
and municipal elections have been held throughout the Union, and
that in no instance has complaint been made of the presence of United
States soldiers at the polls.
Holding, as I do, the opinion that any military interference whatever
at the polls is contrary to the spirit of our institutions and would
tend to destroy the freedom of elections, and sincerely desiring to
concur with Congress in all of its measures, it is with very great
regret that I am forced to the conclusion that the bill before me is
not only unnecessary to prevent such interference, but is a dangerous
departure from long-settled and important constitutional principles.
The true rule as to the employment of military force at the elections
is not doubtful. No intimidation or coercion should be allowed to
control or influence citizens in the exercise of their right to vote,
whether it appears in the shape of combinations of evil-disposed
persons, or of armed bodies of the militia of a State, or of the
military force of the United States.
The elections should be free from all forcible interference, and, as
far as practicable, from all apprehensions of such interference.
No soldiers, either of the Union or of the State militia, should be
present at the polls to take the place or to perform the duties of the
ordinary civil police force. There has been and will be no violation
of this rule under orders from me during this Administration; but
there should be no denial of the right of the National Government to
employ its military force on any day and at any place in case such
employment is necessary to enforce the Constitution and laws of the
United States.
The bill before me is as follows:
_Be it enacted, etc._, That it shall not be lawful to bring to
or employ at any place where a general or special election
is being held in a State any part of the Army or Navy of the
United States, unless such force be necessary to repel the
armed enemies of the United States or to enforce section 4,
Article IV, of the Constitution of the United States and
the laws made in pursuance thereof, on application of the
legislature or executive of the State where such force is to
be used; and so much of all laws as is inconsistent herewith
is hereby repealed.
It will be observed that the bill exempts from the general prohibition
against the employment of military force at the polls two specified
cases. These exceptions recognize and concede the soundness of the
principle that military force may properly and constitutionally be
used at the place of elections when such use is necessary to enforce
the Constitution and the laws; but the excepted cases leave the
prohibition so extensive and far-reaching that its adoption will
seriously impair the efficiency of the executive department of the
Government.
The first act expressly authorizing the use of military power to
execute the laws was passed almost as early as the organization of
the Government under the Constitution, and was approved by President
Washington May 2, 1792. It is as follows:
SEC. 2. _And be it further enacted_, That whenever the laws
of the United States shall be opposed or the execution thereof
obstructed in any State by combinations too powerful to be
suppressed by the ordinary course of judicial proceedings or
by the powers vested in the marshals by this act, the same
being notified to the President of the United States by an
associate justice or the district judge, it shall be lawful
for the President of the United States to call forth the
militia of such State to suppress such combinations and to
cause the laws to be duly executed. And if the militia of a
State where such combination may happen shall refuse or be
insufficient to suppress the same, it shall be lawful for the
President, if the Legislature of the United States be not in
session, to call forth and employ such numbers of the militia
of any other State or States most convenient thereto as may be
necessary; and the use of militia so to be called forth may be
continued, if necessary, until the expiration of thirty days
after the commencement of the ensuing session.
In 1795 this provision was substantially reenacted in a law which
repealed the act of 1792. In 1807 the following act became the law by
the approval of President Jefferson:
That in all cases of insurrection or obstruction to the laws,
either of the United States or of any individual State or
Territory, where it is lawful for the President of the
United States to call forth the militia for the purpose of
suppressing such insurrection or of causing the laws to be
duly executed, it shall be lawful for him to employ for the
same purposes such part of the land or naval force of the
United States as shall be judged necessary, having first
observed all the prerequisites of the law in that respect.
By this act it will be seen that the scope of the law of 1795 was
extended so as to authorize the National Government to use not only
the militia, but the Army and Navy of the United States, in "causing
the laws to be duly executed."
The important provision of the acts of 1792, 1795, and 1807, modified
in its terms from time to time to adapt it to the existing emergency,
remained in force until, by an act approved by President Lincoln July
29, 1861, it was reenacted substantially in the same language in which
it is now found in the Revised Statutes, viz:
SEC. 5298. Whenever, by reason of unlawful obstructions,
combinations, or assemblages of persons, or rebellion against
the authority of the Government of the United States, it shall
become impracticable, in the judgment of the President, to
enforce by the ordinary course of judicial proceedings the
laws of the United States within any State or Territory, it
shall be lawful for the President to call forth the militia of
any or all the States and to employ such parts of the land and
naval forces of the United States as he may deem necessary
to enforce the faithful execution of the laws of the United
States or to suppress such rebellion, in whatever State
or Territory thereof the laws of the United States may be
forcibly opposed or the execution thereof forcibly obstructed.
This ancient and fundamental law has been in force from the foundation
of the Government. It is now proposed to abrogate it on certain days
and at certain places. In my judgment no fact has been produced which
tends to show that it ought to be repealed or suspended for a single
hour at any place in any of the States or Territories of the Union.
All the teachings of experience in the course of our history are in
favor of sustaining its efficiency unimpaired. On every occasion when
the supremacy of the Constitution has been resisted and the perpetuity
of our institutions imperiled the principle of this statute, enacted
by the fathers, has enabled the Government of the Union to maintain
its authority and to preserve the integrity of the nation.
At the most critical periods of our history my predecessors in the
executive office have relied on this great principle. It was on this
principle that President Washington suppressed the whisky rebellion in
Pennsylvania in 1794.
In 1806, on the same principle, President Jefferson broke up the Burr
conspiracy by issuing "orders for the employment of such force, either
of the regulars or of the militia, and by such proceedings of the
civil authorities, * * * as might enable them to suppress effectually
the further progress of the enterprise." And it was under the same
authority that President Jackson crushed nullification in South
Carolina and that President Lincoln issued his call for troops to save
the Union in 1861. On numerous other occasions of less significance,
under probably every Administration, and certainly under the present,
this power has been usefully exerted to enforce the laws, without
objection by any party in the country, and almost without attracting
public attention.
The great elementary constitutional principle which was the foundation
of the original statute of 1792, and which has been its essence in
the various forms it has assumed since its first adoption, is that the
Government of the United States possesses under the Constitution,
in full measure, the power of self-protection by its own agencies,
altogether independent of State authority, and, if need be, against
the hostility of State governments. It should remain embodied in
our statutes unimpaired, as it has been from the very origin of the
Government. It should be regarded as hardly less valuable or less
sacred than a provision of the Constitution itself.
There are many other important statutes containing provisions that are
liable to be suspended or annulled at the times and places of
holding elections if the bill before me should become a law. I do not
undertake to furnish a list of them. Many of them--perhaps the most of
them--have been set forth in the debates on this measure. They relate
to extradition, to crimes against the election laws, to quarantine
regulations, to neutrality, to Indian reservations, to the civil
rights of citizens, and to other subjects. In regard to them all it
may be safely said that the meaning and effect of this bill is to take
from the General Government an important part of its power to enforce
the laws.
Another grave objection to the bill is its discrimination in favor
of the State and against the national authority. The presence or
employment of the Army or Navy of the United States is lawful under
the terms of this bill at the place where an election is being held in
a State to uphold the authority of a State government then and there
in need of such military intervention, but unlawful to uphold the
authority of the Government of the United States then and there in
need of such military intervention. Under this bill the presence or
employment of the Army or Navy of the United States would be lawful
and might be necessary to maintain the conduct of a State election
against the domestic violence that would overthrow it, but would be
unlawful to maintain the conduct of a national election against the
same local violence that would overthrow it. This discrimination has
never been attempted in any previous legislation by Congress, and is
no more compatible with sound principles of the Constitution or the
necessary maxims and methods of our system of government on occasions
of elections than at other times. In the early legislation of 1792
and of 1795, by which the militia of the States was the only military
power resorted to for the execution of the constitutional powers
in support of State or national authority, both functions of the
Government were put upon the same footing. By the act of 1807 the
employment of the Army and Navy was authorized for the performance of
both constitutional duties in the same terms.
In all later statutes on the same subject-matter the same measure of
authority to the Government has been accorded for the performance
of both these duties. No precedent has been found in any previous
legislation, and no sufficient reason has been given for the
discrimination in favor of the State and against the national
authority which this bill contains.
Under the sweeping terms of the bill the National Government is
effectually shut out from the exercise of the right and from the
discharge of the imperative duty to use its whole executive power
whenever and wherever required for the enforcement of its laws at the
places and times when and where its elections are held. The employment
of its organized armed forces for any such purpose would be an offense
against the law unless called for by, and therefore upon permission
of, the authorities of the State in which the occasion arises. What is
this but the substitution of the discretion of the State governments
for the discretion of the Government of the United States as to the
performance of its own duties? In my judgment this is an abandonment
of its obligations by the National Government--a subordination of
national authority and an intrusion of State supervision over national
duties which amounts, in spirit and tendency, to State supremacy.
Though I believe that the existing statutes are abundantly adequate
to completely prevent military interference with the elections in the
sense in which the phrase is used in the title of this bill and is
employed by the people of this country, I shall find no difficulty in
concurring in any additional legislation limited to that object which
does not interfere with the indispensable exercise of the powers of
the Government under the Constitution and laws.
R.B. HAYES.
MAY 12, 1879.
EXECUTIVE MANSION, _May 29, 1879_.
_To the House of Representatives_:
After mature consideration of the bill entitled "An act making
appropriations for the legislative, executive, and judicial expenses
of the Government for the fiscal year ending June 30, 1880, and for
other purposes," I herewith return it to the House of Representatives,
in which it originated, with the following objections to its approval:
The main purpose of the bill is to appropriate the money required to
support during the next fiscal year the several civil departments
of the Government. The amount appropriated exceeds in the aggregate
$18,000,000.
This money is needed to keep in operation the essential functions of
all the great departments of the Government--legislative, executive,
and judicial. If the bill contained no other provisions, no objection
to its approval would be made. It embraces, however, a number of
clauses, relating to subjects of great general interest, which are
wholly unconnected with the appropriations which it provides for.
The objections to the practice of tacking general legislation to
appropriation bills, especially when the object is to deprive a
coordinate branch of the Government of its right to the free exercise
of its own discretion and judgment touching such general legislation,
were set forth in the special message in relation to House bill No. 1,
which was returned to the House of Representatives on the 29th of last
month. I regret that the objections which were then expressed to this
method of legislation have not seemed to Congress of sufficient weight
to dissuade from this renewed incorporation of general enactments in
an appropriation bill, and that my constitutional duty in respect of
the general legislation thus placed before me can not be
discharged without seeming to delay, however briefly, the necessary
appropriations by Congress for the support of the Government. Without
repeating these objections, I respectfully refer to that message for
a statement of my views on the principle maintained in debate by the
advocates of this bill, viz, that "to withhold appropriations is a
constitutional means for the redress" of what the majority of the
House of Representatives may regard as "a grievance."
The bill contains the following clauses, viz:
_And provided further_, That the following sections of the
Revised Statutes of the United States, namely, sections 2016,
2018, and 2020, and all of the succeeding sections of said
statutes down to and including section 2027, and also section
5522, be, and the same are hereby, repealed; * * * and that
all the other sections of the Revised Statutes, and all
laws and parts of laws authorizing the appointment of
chief supervisors of elections, special deputy marshals of
elections, or general deputy marshals having any duties to
perform in respect to any election, and prescribing their
duties and powers and allowing them compensation, be, and the
same are hereby, repealed.
It also contains clauses amending sections 2017, 2019, 2028, and 2031
of the Revised Statutes.
The sections of the Revised Statutes which the bill, if approved,
would repeal or amend are part of an act approved May 30, 1870, and
amended February 28, 1871, entitled "An act to enforce the rights of
citizens of the United States to vote in the several States of
this Union, and for other purposes." All of the provisions of the
above-named acts which it is proposed in this bill to repeal or modify
relate to the Congressional elections. The remaining portion of the
law, which will continue in force after the enactment of this measure,
is that which provides for the appointment, by a judge of the circuit
court of the United States, of two supervisors of election in each
election district at any Congressional election, on due application
of citizens who desire, in the language of the law, "to have such
election _guarded_ and _scrutinized_." The duties of the supervisors
will be to attend at the polls at all Congressional elections, and
to remain after the polls are open until every vote cast has been
counted; but they will "have no authority to make arrests or to
perform other duties than to be in the immediate presence of the
officers holding the election and to witness all their proceedings,
including the counting of the votes and the making of a return
thereof." The part of the election law which will be repealed by the
approval of this bill includes those sections which give authority
to the supervisors of elections "to personally scrutinize, count, and
canvass each ballot," and all the sections which confer authority upon
the United States marshals and deputy marshals in connection with the
Congressional elections. The enactment of this bill will also repeal
section 5522 of the criminal statutes of the United States, which was
enacted for the protection of United States officers engaged in the
discharge of their duties at the Congressional elections. This section
protects supervisors and marshals in the performance of their duties
by making the obstruction or the assaulting of these officers, or
any interference with them, by bribery or solicitation or otherwise,
crimes against the United States.
The true meaning and effect of the proposed legislation are plain. The
supervisors, with the authority to observe and witness the proceedings
at the Congressional elections, will be left, but there will be no
power to protect them, or to prevent interference with their duties,
or to punish any violation of the law from which their powers are
derived. If this bill is approved, only the shadow of the authority of
the United States at the national elections will remain; the substance
will be gone. The supervision of the elections will be reduced to a
mere inspection, without authority on the part of the supervisors to
do any act whatever to make the election a fair one. All that will be
left to the supervisors is the permission to have such oversight of
the elections as political parties are in the habit of exercising
without any authority of law, in order to prevent their opponents from
obtaining unfair advantages. The object of the bill is to destroy
any control whatever by the United States over the Congressional
elections.
The passage of this bill has been urged upon the ground that the
election of members of Congress is a matter which concerns the States
alone; that these elections should be controlled exclusively by
the States; that there are and can be no such elections as national
elections, and that the existing law of the United States regulating
the Congressional elections is without warrant in the Constitution.
It is evident, however, that the framers of the Constitution regarded
the election of members of Congress in every State and in every
district as in a very important sense justly a matter of political
interest and concern to the whole country. The original provision of
the Constitution on this subject is as follows (sec. 4, Art. I):
The times, places, and manner of holding elections for
Senators and Representatives shall be prescribed in each State
by the legislature thereof; but the Congress may at any time,
by law, make or alter such regulations, except as to the
places of choosing Senators.
A further provision has been since added, which is embraced in the
fifteenth amendment. It is as follows:
SEC. 1. The right of citizens of the United States to vote
shall not be denied or abridged by the United States or by
any State on account of race, color, or previous condition of
servitude.
SEC. 2. The Congress shall have power to enforce this article
by appropriate legislation.
Under the general provision of the Constitution (sec. 4, Art. I)
Congress in 1866 passed a comprehensive law which prescribed full and
detailed regulations for the election of Senators by the legislatures
of the several States. This law has been in force almost thirteen
years. In pursuance of it all the members of the present Senate of the
United States hold their seats. Its constitutionality is not called
in question. It is confidently believed that no sound argument can
be made in support of the constitutionality of national regulation of
Senatorial elections which will not show that the elections of members
of the House of Representatives may also be constitutionally regulated
by the national authority.
The bill before me itself recognizes the principle that the
Congressional elections are not State elections, but national
elections. It leaves in full force the existing statute under which
supervisors are still to be appointed by national authority to
"observe and witness" the Congressional elections whenever due
application is made by citizens who desire said elections to be
"guarded and scrutinized." If the power to supervise in any respect
whatever the Congressional elections exists under section 4, Article
I, of the Constitution, it is a power which, like every other power
belonging to the Government of the United States, is paramount and
supreme, and includes the right to employ the necessary means to carry
it into effect.
The statutes of the United States which regulate the election of
members of the House of Representatives, an essential part of which
it is proposed to repeal by this bill, have been in force about eight
years. Four Congressional elections have been held under them, two of
which were at the Presidential elections of 1872 and 1876. Numerous
prosecutions, trials, and convictions have been had in the courts of
the United States in all parts of the Union for violations of these
laws. In no reported case has their constitutionality been called in
question by any judge of the courts of the United States. The validity
of these laws is sustained by the uniform course of judicial action
and opinion.
If it is urged that the United States election laws are not necessary,
an ample reply is furnished by the history of their origin and of
their results. They were especially prompted by the investigation and
exposure of the frauds committed in the city and State of New York
at the elections of 1868. Committees representing both of the leading
political parties of the country have submitted reports to the House
of Representatives on the extent of those frauds. A committee of the
Fortieth Congress, after a full investigation, reached the conclusion
that the number of fraudulent votes cast in the city of New York alone
in 1868 was not less than 25,000. A committee of the Forty-fourth
Congress in their report, submitted in 1877, adopted the opinion that
for every 100 actual voters of the city of New York in 1868 108 votes
were cast, when in fact the number of lawful votes cast could not
have exceeded 88 per cent of the actual voters of the city. By this
statement the number of fraudulent votes at that election in the city
of New York alone was between thirty and forty thousand. These frauds
completely reversed the result of the election in the State of New
York, both as to the choice of governor and State officers and as to
the choice of electors of President and Vice-President of the United
States. They attracted the attention of the whole country. It was
plain that if they could be continued and repeated with impunity free
government was impossible. A distinguished Senator, in opposing the
passage of the election laws, declared that he had "for a long time
believed that our form of government was a comparative failure in the
larger cities." To meet these evils and to prevent these crimes the
United States laws regulating Congressional elections were enacted.
The framers of these laws have not been disappointed in their results.
In the large cities, under their provisions, the elections have been
comparatively peaceable, orderly, and honest. Even the opponents of
these laws have borne testimony to their value and efficiency and to
the necessity for their enactment. The committee of the Forty-fourth
Congress, composed of members a majority of whom were opposed to these
laws, in their report on the New York election of 1876, said:
The committee would commend to other portions of the country
and to other cities this remarkable system, developed through
the agency of both local and Federal authorities acting in
harmony for an honest purpose. In no portion of the world and
in no era of time where there has been an expression of the
popular will through the forms of law has there been a more
complete and thorough illustration of republican institutions.
Whatever may have been the previous habit or conduct of
elections in those cities, or howsoever they may conduct
themselves in the future, this election of 1876 will stand as
a monument of what good faith, honest endeavor, legal forms,
and just authority may do for the protection of the electoral
franchise.
This bill recognizes the authority and duty of the United States
to appoint supervisors to guard and scrutinize the Congressional
elections, but it denies to the Government of the United States all
power to make its supervision effectual. The great body of the people
of all parties want free and fair elections. They do not think that
a free election means freedom from the wholesome restraints of law or
that the place of election should be a sanctuary for lawlessness
and crime. On the day of an election peace and good order are more
necessary than on any other day of the year. On that day the humblest
and feeblest citizens, the aged and the infirm, should be, and should
have reason to feel that they are, safe in the exercise of their
most responsible duty and their most sacred right as members of
society--their duty and their right to vote. The constitutional
authority to regulate the Congressional elections which belongs to the
Government of the United States, and which it is necessary to exert
to secure the right to vote to every citizen possessing the requisite
qualifications, ought to be enforced by appropriate legislation.
So far from public opinion in any part of the country favoring any
relaxation of the authority of the Government in the protection of
elections from violence and corruption, I believe it demands greater
vigor both in the enactment and in the execution of the laws framed
for that purpose. Any oppression, any partisan partiality, which
experience may have shown in the working of existing laws may well
engage the careful attention both of Congress and of the Executive,
in their respective spheres of duty, for the correction of these
mischiefs. As no Congressional elections occur until after the regular
session of Congress will have been held, there seems to be no public
exigency that would preclude a seasonable consideration at that
session of any administrative details that might improve the present
methods designed for the protection of all citizens in the complete
and equal exercise of the right and power of the suffrage at such
elections. But with my views, both of the constitutionality and of the
value of the existing laws, I can not approve any measure for their
repeal except in connection with the enactment of other legislation
which may reasonably be expected to afford wiser and more efficient
safeguards for free and honest Congressional elections.
RUTHERFORD B. HAYES.
EXECUTIVE MANSION, _June 23, 1879_.
_To the House of Representatives_:
After careful examination of the bill entitled "An act making
appropriations for certain judicial expenses," I return it herewith
to the House of Representatives, in which it originated, with the
following objections to its approval:
The general purpose of the bill is to provide for certain judicial
expenses of the Government for the fiscal year ending June 30, 1880,
for which the sum of $2,690,000 is appropriated. These appropriations
are required to keep in operation the general functions of the
judicial department of the Government, and if this part of the bill
stood alone there would be no objection to its approval. It contains,
however, other provisions, to which I desire respectfully to ask your
attention.
At the present session of Congress a majority of both Houses, favoring
a repeal of the Congressional election laws embraced in title 26 of
the Revised Statutes, passed a measure for that purpose, as part of
a bill entitled "An act making appropriations for the legislative,
executive, and judicial expenses of the Government for the fiscal year
ending June 30, 1880, and for other purposes." Unable to concur with
Congress in that measure, on the 29th of May last I returned the bill
to the House of Representatives, in which it originated, without my
approval, for that further consideration for which the Constitution
provides. On reconsideration the bill was approved by less than
two-thirds of the House, and failed to become a law. The election laws
therefore remain valid enactments, and the supreme law of the land,
binding not only upon all private citizens, but also alike and equally
binding upon all who are charged with the duties and responsibilities
of the legislative, the executive, and the judicial departments of the
Government.
It is not sought by the bill before me to repeal the election laws.
Its object is to defeat their enforcement. The last clause of the
first section is as follows:
And no part of the money hereby appropriated is appropriated
to pay any salaries, compensation, fees, or expenses under
or in virtue of title 26 of the Revised Statutes, or of any
provision of said title.
Title 26 of the Revised Statutes, referred to in the foregoing clause,
relates to the elective franchise, and contains the laws now in force
regulating the Congressional elections.
The second section of the bill reaches much further. It is as follows:
SEC. 2. That the sums appropriated in this act for the persons
and public service embraced in its provisions are in full for
such persons and public service for the fiscal year ending
June 30, 1880; and no Department or officer of the Government
shall during said fiscal year make any contract or incur any
liability for the future payment of money under any of the
provisions of title 26 of the Revised Statutes of the United
States authorizing the appointment or payment of general
or special deputy marshals for service in connection with
elections or on election day until an appropriation sufficient
to meet such contract or pay such liability shall have first
been made by law.
This section of the bill is intended to make an extensive and
essential change in the existing laws. The following are the
provisions of the statutes on the same subject which are now in force:
SEC. 3679. No Department of the Government shall expend in any
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