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Washington, D.C., March 2, 1867
To the House of Representatives of the United States:
I have examined the bill to provide for the more efficient government of the Rebel States' with care and anxiety which its transcendent importance is calculated to awaken. I am unable to give it my assent for reasons so grave that I hope a statement of them may have some influence on the minds of the patriotic and enlightened men with whom the decision must ultimately rest.
The bill places all the people of the ten States therein named under the absolute domination of military rule; and the preamble undertakes to give the reason upon which the measure is based and the ground upon which it is justified. It declares that there exists in those States no legal governments and no adequate protection for life or property, and asserts the necessity of enforcing peace and good order within their limits. This is not true as a matter of fact.
It is not denied that the States in question have each of them an actual government, with all the powers -- executive, judicial, and legislative -- which properly belong to a free State. They are organized like the other States of the Union, and, like them, they make, administer, and execute the laws which concern their domestic affairs. An existing de facto government, exercising such functions as these, is itself the law of the State upon all matters within its jurisdiction. To pronounce the supreme law making power of an established State illegal is to say that law itself is unlawful.
The provisions which these governments have made for the preservation of order, the suppression of crime, and the redress of private injuries are in substance and principle the same as those which prevail in the Northern States and in other civilized countries. They certainly have not succeeded in preventing the commission of all crime, nor has this been accomplished any where in the world.... But that people are maintaining local governments for themselves which habitually defeat the object of all government and render their own lives and property insecure is in itself utterly improbable, and the averment of the bill to that effect is not supported by any evidence which has come to my knowledge.
The bill, however, would seem to show upon its face that the establishment of peace and good order is not its real object. The fifth section declares that the preceding sections shall cease to operate in any State where certain events shall have happened. These events are, first, the selection of delegates to a State convention by an election at which Negroes shall be allowed to vote; second, the formation of a State constitution by the convention so chosen; third, the insertion into the State constitution of a provision which will secure the right of voting at all elections to Negroes and to such white men as may not be disfranchised for rebellion or felony; fourth, the submission of the constitution for ratification by their vote; fifth, the submission of the State constitution to Congress for examination and approval, and the actual approval of it by that body; sixth, the adoption of a certain amendment to the Federal Constitution by a vote of Legislature elected under the new constitution; seventh, the adoption of said amendment by a sufficient number of other States to make it a part of the Constitution of the United States. All these conditions must be fulfilled before the people of any of these States can be relieved from the bondage of military domination; but when they are fulfilled, then immediately the pains and penalties of the bill are to cease, no matter whether there be peace and order or not, and without any reference to the security of life or property.
given for the bill in the preamble is one of necessity. The military rule
which it establishes is plainly to be used, not for any purpose of order
or for the prevention of crime, but solely as a means of coercing the
people into the adoption of principles and measures to which it is known
that they are opposed, and upon which they have an undeniable right to
exercise their own judgment.
The ten States named in the bill are divided into five districts. For each district an officer of the Army, not below the rank of a brigadier-general, is to be appointed to rule over the people; and he is to be supported with an efficient military force to enable him to perform his duties and enforce his authority. Those duties and that authority, as defined by the third section of the bill, are "to protect all persons in their rights of person and property, to suppress insurrection, disorder, and violence, and to punish or cause to be punished all disturbers of the public peace or criminals." The power thus given to the commanding officer over all the people of each district is that of an absolute monarch. His mere will is to take the place of all law. The law of the States is now the only rule applicable to the subjects placed under his control, and that is completely displaced by the clause which declares all interference of State authority to be null and void. He alone is permitted to determine what are rights of person or property, and he may protect them in such a way as in his discretion may seem proper. It places at his free disposal all the lands and goods in his district, and he may distribute them without let or hindrance to whom he pleases. Being bound by no State law, and there being no other law to regulate the subject, he may make a criminal code of his own; and he can make it as bloody as any recorded in history or he can reserve the privilege of acting upon the impulse of his private passions in each case that arises. He is bound by no rules of evidence; there is indeed no provision by which he is authorized or required to take any evidence at all. Every thing is a crime which he chooses to call so, and all persons are condemned whom he pronounces to be guilty. He is not bound to keep any record or make any report of his proceedings. He may arrest his victims wherever he finds them, without warrant, accusation, or proof of probable cause. If he gives them a trial before he inflicts the punishment, he gives it of his grace and mercy, not because he is commanded so to do.
Cruel or unusual punishment is not to be inflicted, but who is to decide what is cruel and what is unusual?... Each officer may define cruelty according to his own temper, and if it is not usual, he will make it usual. Corporal punishment, imprisonment, the gag, the ball and chain, and the almost insupportable forms of torture invented for military punishment lie within the range of choice. The sentence of a commission is not to be executed without being approved by the commander, if it affects life or liberty, and a sentence of death must be approved by the President. This applies to cases in which there has been a trial and sentence. I take it to be clear, under this bill, that the military commander may condemn to death without even the form of a trial by a military commission, so that the life of the condemned may depend upon the will of two men instead of one.
It is plain that the authority here given to the military officer amounts to absolute despotism. But to make it still more unendurable, the bill provides that it may be delegated to as many subordinates as he chooses to appoint, for it declares that he shall "punish or cause to be punished." Such a power has not been wielded by any Monarch in England for more than five hundred years. In all that time no people who speak the English language have borne such servitude. It reduces the whole population of the ten States -- all persons, of every color, sex and condition, and every stranger within their limits -- to the most abject and degrading slavery. No master ever had a control so absolute over the slaves as this bill gives to the military officers over both white and colored persons.
I come now to a question which is, if possible, still more important. Have we the power to establish and carry into execution a measure like this? I answer, "Certainly not," if we derive our authority from the Constitution and if we are bound by the limitations which it imposes. This proposition is perfectly clear, that no branch of the Federal Government -- executive, legislative, or judicial -- can have any just powers except those which it derives through and exercises under the organic laws of the Union. Outside of the Constitution we have no legal authority more than private citizens, and within it we have only so much as that instrument gives us. This broad principle limits all our functions and applies to all subjects. It protects not only the citizens of States which are within the Union, but it shields every human being who comes or is brought under our jurisdiction. We have no right to do in one place more than in another that which the Constitution says we shall not do at all. If, therefore, the Southern States were in truth out of the Union, we could not treat their people in a way which the fundamental law forbids. Some persons assume that the success of our arms in crushing the opposition which was made in some of the States to the execution of the Federal laws reduced those States and all their people -- the innocent as well as the guilty -- to the condition of vassalage and gave us a power over them which the Constitution does not bestow or define or limit. No fallacy can be more transparent than this. Our victories subjected the insurgents to legal obedience, not to the yoke of an arbitrary despotism. When an absolute sovereign reduces his rebellious subjects, he may deal with them according to his pleasure, because he had that power before. But when a limited monarch puts down an insurrection, he must still govern according to law.
If an insurrection should take place in one of our States against the authority of the State government, and end in the overthrowing of those who planned it, would they take away the rights of all the people of the counties where it was favored by a part or a majority of the population? Could they for such a reason be wholly outlawed and deprived of their representation in the Legislature? I have always contended that the Government of the United States was sovereign within its constitutional sphere; that it executed its laws like the States themselves, by applying its coercive power directly to individuals; and that it could put down insurrection with the same effect as a State and no other. The opposite doctrine is the worst heresy of those who advocated secession, and can not be agreed to without admitting that heresy to be right.
This is a
bill passed by Congress in time of peace. There is not in any one of the
States brought under its operation either war or insurrection. The laws
of the States and of the Federal Government are all in undisturbed and
harmonious operation. The courts, State and Federal, are open and in the
full exercise of their proper authority. Over every State comprised in
these five military districts, life, and property are secured by State
laws and Federal laws, and the National Constitution is every where in
force and every where obeyed. What, then is the ground on which the bill
proceeds? The title of the bill announces that it is intended "for
the more efficient government" of these ten States. It is recited
by way of preamble that no legal State Governments "nor adequate
protection for life or property" exist in those States, and that
peace and good order should be thus recitals, which prepare the way for
martial law, is this, that the only foundation upon which martial law
can exist under our form of Government is not stated or so much as pretended.
Actual war, foreign invasion, domestic insurrection -- none of these appear,
and none of these in fact exist. It is not even recited that any sort
of war or insurrection is threatened. Let us pause to consider, upon this
question of constitutional law and power of Congress, a recent decision
of the Supreme Court of the United States in ex parte Milligan, I will
first quote from the opinion of the majority of the Court: "Martial
law can not arise from a threatened invasion. The necessity must be actual
and present, the invasion real, such as effectually closes the courts
and deposes the civil administration."
It follows from what has been said on this subject that there are occasions when martial law can be properly applied. If in foreign invasion or civil war the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theater of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course.
I now quote from the opinion of the minority of the Court, delivered by Chief Justice Chase: "We by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists. Where peace exists, the laws of peace must prevail."
This is sufficiently
explicit. Peace exists in all the territory to which this bill applies.
It asserts a power in Congress, in time of peace, to set aside the laws
of peace and to substitute the laws of war. The minority, concurring with
the majority, declares that Congress does not possess that power.... I
need not say to the representatives of the American people that their
Constitution forbids the exercise of judicial power in any way but one
-- that is, by the ordained and established courts. It is equally well
known that in all criminal cases a trial by jury is made indispensable
by the express words of that instrument.
The Constitution also forbids the arrest of the citizen without judicial warrant, founded on probable cause. This bill authorizes an arrest without warrant, at pleasure of a military commander. The Constitution declares that "no person shall be held to answer for a capital or otherwise infamous crime unless on presentment of a grand jury." This bill holds every person not a soldier answerable for all crimes and all charges without any presentment. The Constitution declares that "no person shall be deprived of life, liberty, or property without due process of law." This bill sets aside all process of law, and makes the citizen answerable in his person and property to the will of one man, and as to his life to the will of two. Finally, the Constitution declares that "the privilege of the writ of habeas corpus shall not be suspended unless when, in case of rebellion or invasion, the public safety may require it"; whereas this bill declares martial law (which of itself suspends this great writ) in time of peace, and authorizes the military to make the arrest, and gives to the prisoner only one privilege, and that is trial "without unnecessary delay." He has no hope of release from custody, except the hope, such as it is, of release by acquittal before a military commission.
The United States are bound to guaranty to each State a republican form of government. Can it be pretended that this obligation is not palpably broken if we carry out a measure like this, which wipes away every vestige of republican government in ten States and puts the life, property, and honor of all people in each of them under domination of a single person clothed with unlimited authority?
Here is a bill of attainder against 9,000,000 people at once. It is based upon an accusation so vague as to be scarcely intelligible and found to be true upon no credible evidence. Not one of the 9,000,000 was heard in his own defense. The representatives of the doomed parties were excluded from all participation in the trial. The conviction is to be followed by the most ignominious punishment ever inflicted on large masses of men. It disfranchises them by hundreds of thousands and degrades them all, even those who are admitted to be guiltless, from the rank of freeman to the condition of slaves.
The purpose and object of the bill -- the general intent which pervades it from beginning to end -- is to change the entire structure and character of the State Governments and to compel them by force to the adoption of organic laws and regulations which they are unwilling to accept if left to themselves. The Negroes have not asked for the privilege of voting; the vast majority of them have no idea what it means. This bill not only thrusts it into their hands, but compels them, as well as the whites, to use it in a particular way. If they do not form a constitution with prescribed articles in it and afterwards elect a legislature which will act upon certain measures in a prescribed way, neither blacks nor whites can be relieved from the slavery which the bill imposes upon them. Without pausing here to consider the policy or impolicy of Africanizing the southern part of our territory, I would simply ask the attention of Congress to the manifest, well-known, and universally acknowledged rule of Constitutional law which declares that the Federal Government has no jurisdiction, authority, or power to regulate such subjects for any State. To force the right of suffrage out of the hands of white people and into the hands of the Negroes is an arbitrary violation of this principle.
This bill imposes martial law at once, and its operations will begin so soon as the General and his troops can be put in place. The dread alternative between its harsh rule and compliance with the terms of this measure is not suspended, nor are the people afforded any time for free deliberation. The bill says to them, Take martial law first, then deliberate.
The bill also denies the legality of the governments of ten of the States which participated in the ratification of the amendment to the Federal Constitution abolishing slavery forever within the jurisdiction of the United States, and practically excludes them from the Union.
measure proposed by this bill does violate the Constitution in the particulars
mentioned and in many other ways which I forbear to enumerate is too clear
to admit the least doubt. It only remains to consider whether the injunctions
of that instrument ought to be obeyed or not. I think they ought to be
obeyed, for reasons which I will proceed to give as briefly as possible.
In the first place, it is the only system of free Government which we
can hope to have as a Nation. When it ceases to be the rule of our conduct,
we may perhaps take our choice between complete anarchy, a consolidated
despotism, and a total dissolution of the Union; but national liberty
regulated by law will have passed beyond our reach.
It is a part of our public history which can never be forgotten that both Houses of Congress, in July 1861, declared in the form of a solemn resolution that the war was and should be carried on for no purpose of subjugation, but solely to enforce the Constitutional rights of the States and of individuals unimpaired. This resolution was adopted and sent forth to the world unanimously by the Senate and with only two dissenting voices in the House. It was accepted by the friends of the Union in the South as well as in the North as expressing honestly and truly the object of the war. On the faith of it many thousands of persons in both sections gave their lives and their fortunes to the cause. To repudiate it now by refusing to the States and to the individuals within them the "rights" which the Constitution and laws of the Union would secure to them is a breach of our plighted honor for which I can imagine no excuse and to which I cannot voluntarily become a party.
I am thoroughly convinced that any settlement or compromise or plan of actions which is inconsistent with the principles of the Constitution will not only be unavailing, but mischievous; that it will but multiply the present evils, instead of removing them. The Constitution, in its whole integrity and vigor, throughout the length and breadth of the land, is the best of all compromises. Besides, our duty does not, in my judgment, leave us a choice between that and any other. I believe that it contains the remedy that is so much needed, and that if the coordinate branches of the Government would unite upon its provisions they would be found broad enough and strong enough to sustain in time of peace the Nation which they bore safely through the ordeal of a protracted civil war. Among the most sacred guaranties of that instrument are those which declare that "each State shall have at least one Representative," and that "no State, without its consent, shall be deprived of its equal suffrage in the Senate." Each House is made the "judge of the elections, returns and qualifications of its own members," and may, "with the concurrence of two-thirds, expel a member." Thus, as heretofore urged, "in the admission of Senators and Representatives from any and all of the States there can no just ground of apprehension that persons who are disloyal will be clothed with the powers of legislation, for this could not happen when the Constitution and the laws are enforced by a vigilant and faithful Congress." When a Senator or Representative presents his certificate of election, he may at once be admitted or rejected, or, should there be any question as to his eligibility, his credentials may be referred for investigation to the appropriate committee. If admitted to a seat, it must be upon evidence satisfactory to the House of which he thus becomes a member that he possesses the requisite constitutional and legal qualifications. If refused admission as a member for want of due allegiance to the Government, and returned to his constituents, they are admonished that none but persons loyal to the United States will be allowed a voice in the legislative councils of the Nation, and the political power and moral influence of Congress are thus effectively exerted in the interests of loyalty to the Government and fidelity of the Union.
And is it not far better that the work of restoration should be accomplished by simple compliance with the plain requirements of the Constitution, than by a recourse to measures which, in effect, destroy the States, and threaten the subversion of the General Government? All that is necessary to settle this simple but important question, without further agitation or delay, is a willingness, on the part of all, to sustain the Constitution, and carry its provisions into practical operation. If to-morrow either branch of Congress would declare that, upon the presentation of their credentials, members constitutionally elected, and loyal to the General Government, would be admitted to seats in Congress, while all others would be excluded, and their places remain vacant until the selection by the people of loyal and qualified persons; and if, at the same time, assurance were given that this policy would be continued until all the States were represented in Congress, it would send a thrill of joy throughout the entire land, as indicating the inauguration of a system which must speedily bring tranquility to the public mind.
While we are legislating upon subjects which are of great importance to the whole people, and which must affect all parts of the country, not only hurting the life of the present generation, but for ages to come, we should remember that all men are entitled at least to a hearing in the councils which decide upon the destiny of themselves and their children. At present ten States are denied representation, and when the Fortieth Congress assembles on the 4th day of the present month sixteen States will be without a voice in the House of Representatives. This grave fact, with the important questions before us, should induce us to pause in a course of legislation which, looking solely to the attainment of political ends, fails to consider the rights it transgresses, the law which it violates, or the institutions which it imperils.