Qass. /F 6 6 <^' Book ij. ■^' PRESIDENT OF THE LINITED STATES, UhlTL'KXlXG TO THE HOUSE OF REPRESENTATIVES A Ull.L KNTITI.ED AX ACT TO PROVIDE FOR THE 3I0RE EFFICIENT GOVERN- MENT OF THE REBEL STATES." W ASHING T N 1867. JUN 28 19IU ]VIESSA.aE. To THE House of Eepresextatives: I have examined the bill "to provide lor the more elRcicnt government of the rebel States" with the care and anxiety which its transcendent importance is calculated to awaken. I am unable to give it my assent for reasons so grave, that I hope a statement of them may have some influence on the minds of the patriotic and enlightened men with whom the decision must ultimateh' rest. The bill places all the people of the ten States therein named under the absolute domination ol' militaiy rulers; and the preamble undertakes to give the reason upon which the measure is based, and the ground upon which it is justified. It declares that there exists in those States no legal Governments, and no adequate protection for life or property, and asserts the necessity of enforcing peace and good order within their limits. Is this true as matter of fact? It is not denied that the States in question have each of them an actual Government, with all the powers, executive, judicial, and legislative, which properly belong to a free State. They are organized like the other States of the Union, and, like them, the}' make, administer, and exe- cute 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 Governnients have made for the preserva- tion of order, the suppression of crime, and the redress of private inju- ries, are in substance and principle the same as those which prevail in the Northern States and in other civilized countries. They certainly have not succeeded in preventing the commission of all crime, nor has this been accomplished anywhere in the world. There, as well as else- where, offenders sometimes escape for want of vigorous prosecution, and occasionall}', perhaps, by the inefficiency of courts or the prejudice of jurors. It is undoubtedly true that these evils have been much increased and aggravated, North and South, by the demoralizing influences of civil war, and by the rancorous passions which the contest has engendered. But that these people are maintaining local Governments for themselves which habitually defeat the object of all government and render their own lives and property insecure, is in itself utterly improbable, and the averment of the bill to that effect is not supported b}- any evidence which has come to my knowledge. All the information I have on the subject convinces me that the masses of the Southern people and those who con- trol their public acts, while they entertain diverse opinions on questions of Federal policy, are completely united in the effort to reorganize their society on the basis of peace, and to restore their mutual jDrosperity as rapidly and as completely as their circumstances will j^ermit. The bill, however, would seem to show upon its face that the esta- blishment of peace and goodorder 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 Con- stitution 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 ma}' not be disfranchised for rebellion or fclonj'. Fourth, the submission of the Constitution for ratification to negroes and white men not disfranchised, and its actual ratification by their vote. Fifth, the submission of the State Constitu- tion to Congress for examination and approval, and the actual approval of it bj^ that body. Sixth, the adoption of a certain amendment to the Federal Constitution by a vote of the Legislature elected under the new Constitution. Seventh, the adoption of said amendment by a sufficient number of other States to make it a part of the Constitution of the United States. All these conditions must be fulfilled before the people of any of these States can be relieved from the bondage of military domin- ation ; but when they are fulfilled, then immediately the pains and pen- alties of the bill are to cease, no matter whether there be peace and order or not, and without any reference to the security of life or property. The excuse given for the bill in the preamble is admitted by the bill itself not to be real. The militaiy rule which it establishes is plainly to be used — not for any purpose of order or for the i)revention of crime, but solely as a means of coercing the people into the adoption of principles and measures to which it is known that lliey are opposed, and upon which they have an iin(leiii:iI)lo right to exercise their own judgment. I submit to Coniiress whether this measure is not. in its whole charac- ter, scope, and object, without precedent and without authority, in pal- pablo conflict with the plainest provisions of the Constitution, and utterly destructive to those great principles of libert}- and humanity for which our ancestors on both sides of the Atlantic have shed so much blood and expended so much treasure. The ten States named in the bill are divided into five districts. For each district an oflicer of the army, not below the rank of brigadier general, is to be appointed to rule over the people ; and he is to be sup- ported 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 oflicer over all the people of each district is that of an absolute monarch. His mere will is to take the place of all law. The law of the States is now the only rule applicable to the subjects placed under his control, and that is completely displaced by the clause which declares all interference of State authority to be null and void. He alone is permitted to determine what are rights of person or property, and he may protect them in such way as in his discretion may seem proper. It places at his free disposal all the lands and goods in his district, and he may distribute them without let or hindrance to whom he pleases. Being bound by no State law, and there being no other law to regulate the subject, he may make a criminal code of his own; and he can make it as bloody as any recorded in history, or he can reserve the privilege of acting upon the impulse of his private passions in each case that arises. He is bound by no rules of evidence: there is indeed no provision by which he is authorized or required to take an}' evidence at all. Everything is a crime which he chooses to call so, and all persons arc condemned whom he pronounces to be guilty.' He is not bound to keep an}' record, or make any report of his proceed- ings. He may arrest his victims wherever he finds them, without war- rant, 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 be- cause he is commanded so to do. To a casual reader of the bill, it might seem that some kind of trial was secured by it to persons accused of crime ; but such is not the case. The officer "may allow local civil tribunals to try offenders," but of course this does not require that he shall do so. If any State or Federal court presumes to exercise its legal jurisdiction by the trial of a malefac- tor without his special permission, he can break it up, and punish the 6 judges and jurors as being themselves malefactors. He can save his friends from justice, and despoil his enemies contrarj^ to justice. It is also provided that "he shall have power to organize military com- missions or tribunals;" but this power he is not commanded to exei'cise. It is merel}' permissive, and is to be used only " when in his judgment it may be necessary for the trial of offenders." Even if the sentence of a commission were made a prerequisite to the punishment of a party, it would be scarcely the slightest check upon the officer, who has authorit}" to organize it as he pleases, prescribe its mode of proceeding, appoint its members from among his own subordinates, and revise all its decisions. Instead of mitigating the har.shuess of his single rule, such a tribunal would be used much more probably to divide therespoiisibility of making- it more cruel and unjust. Several provisions, dictated b}- the humanity of Congress, have been inserted in the bill, apparently to restrain the power of the commanding- officer; but it seems to mo that they are of no avail for that purpose. The fourth section provides — First. That trials shall not be unnecessarily delayed; but I think I have shown that the power is given to punish without trial, and if so, this provision is practically inoperative. Second. Cruel or unusual punishment is not to be inflicted; but who is to decide what is cruel and Avhat is unusual? The words have acquired a legal meaning by long use in the courts. Can it be expected that military officei's will understand or follow a rule expressed in language so purely technical, and not pertaining in the least degree to their profession ? If not, then each officer ma}" define cruelty according to his own temjier, and if it is not usual, he will make it usual. Corporal punishment, im- prisonment, the gag, the ball and chain, and the almost insupportable forms of torture invented for military punishment, lie within the range of choice. Third. The sentence of a commission is not to be executed without being approved by the commander, if it aftects 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. JJut, 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 tliat he shall "punish or cause to be pun- ished." Such a power has not been wielded by any monarch in England for more than five hundred years. In all that time no j^eople 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 condi- tion, and ever}' stranger within their limits — to the most abject and de- grading slavery. No master ever had a control so absolute over his slaves as this bill gives to the military officers over both white and colored persons. It may betanswered to this that the officers of the army are too magnani- mous, just, and humane to oppress and trample upon a subjugated people. I do not doubt that army officers are as avcII entitled to this kind of con- fidence as any other class of men. But the histor}' of the world has been written in vain, if it does not teach us that unrestrained authorit}' can never be safely trusted in human hands. It is almost sure to be more or less abused under any circumstances, and it has always resulted in gross tyranny where the rulers who exercise it are strangers to their subjects, and come among them as the representatives of a distant power, and more especially when the power that sends them is unfriendly. Govern- ments closely resembling that here proposed have been fairly tried in Hungary and Poland, and the suffering endured by those people roused the sympathies of the entire world. It was tried in Ireland, and, though tempered at first by principles of English Uiav, it gave birth to cruelties so atrocious that they are never recounted without just indignation. The French Convention armed its deputies with this power, and sent them to the Southern departments of the Eepublic. The massacres, murders, and other atrocities which the}' committed show what the passions of the ablest men in the most civilized society will tempt them to do when wholly unrestrained by law. The men of our race in every age have struggled to tie up the hands of their (rovcrnmcnts and keep them within the law; because their own experience of all mankind taught them that rulers could not be relied on to concede those rights which they were not legally bound to respect. The head of a great empire has sometimes governed it with a mild and paternal swaj' ; but the kindness of an irresponsible deputy never yields what the law does not extort from him. Between such a master and the people subjected to his domination there can be nothing but enmity; he punishes them if they resist his authority, and, if the}' submit to it, he hates them for their servility. I come now to a question which is, if possible, still more imjiortant. 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 Con- stitution, and if we are bound by the limitations which it imposes. 8 This proposition is perfectly clear — that no branch of the Federal Gov- ernment, executive, legislative, or judicial, can have any just powers, except those which it derives through and exercises under the organic law of the Union. Outside of the Constitution, we have no legal author- ity more than private citizens, and within it we have onl}' 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 execu- tion 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, oi- limit. Xo fallacy can be more transparent than this. Our victories sub- jected 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 insurrec- tion, he must still govern according to law. It^ an insurrection should take place in one of our States against the authority of the State Gov- ernment, and end in the overthrow of those who planned it, would that take away the rights of all the people of tlie 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 tlieir representation in the Leo-islature? I have alwavs 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 Ihe same effect as a State, and no other. The opposite doctrine is the worst heresy of tho.se who advocated secession, and cannot be agreed to without admitting that heresy to be ri|ht. invasion, insurrection, rebellion, and domestic violence were anticipated when the Government was framed, and the means of repelling and sup- ])ressing them were wisely provided for in the Constitution; but it was not thcnight nece.'^sary to declare that the States in which they might 9 occur should be expelled from the Union. EebcUious, which were inva- riably suppressed, occurred prior to that out of •which these questions grow; but the States continued to exist and the Union remained un- broken. In Massachusetts, in Pennsylvania, in Ehode Island, and in New York, at different periods in our history, violent and armed opposi- tion to the United States was carried on; but the relations of those vStates with the Federal Government were not supposed to be interrupted or changed thereby, after the rebellious portions of their population were defeated and put down. It is true that in these earlier cases there M'as no formal expression of a determination to withdraw from the Union, but it is also true that in the Southern States the ordinances of secession were treated by all the friends of the Union as mere nullities, and are now acknowledged to be so by the States themselves. If we admit that the}" had any force or validity, or that they did in fact take the States in which they were passed out of the Union, we sweep fi'om under our feet all the grounds upon which we stand in justifying the use of Federal force to maintain the integrit}' of the Government. This is a bill passed by Congress in time of peace. There is not in any one of the States brought under its oj)eration either war or insurrec- tion. 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 fall exercise of their proper authority. Over every State comprised in these five military districts, life, liberty, and property are secured by State laws and Federal laws, and the National Constitu- tion is ever3-where in force and everyw^here obeyed. What, then, is the ground on which this bill proceeds? The title of the bill announces that it is intended "for the more efficient government" of these ten States. It is recited by way of preamble that no legal State Governments, "nor adequate protection for life or property," exist in those States, and that peace and good order should be thus enforced. The first thing which ar- rests attention upon these recitals, which prepare the w\ay 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 ap- pear; and none of these in fact exist. It is not even recited that any sort of war or insurrection is threatened. Let us pause here to consider, upon this question of constitutional law and the power of Congress, a recent decision of the Supreme Court of the United States in ex 'parte Milligan. I will first quote from the opinion of the majority of the Court: "Martial law cannot arise from a threatened invasion. The necessity 2 10 must be actual and present, the invasion real, such as effectually closes the courts and deposes the civil administration." We see that martial law comes in only when actual war closes the courts and deposes the civil authority; but this bill, in time of peace, makes martial law operate as though we were in actual war, and become the cause, instead of the con- sequence of the abrogation of civil authority. One more quotation: "It follows from Avhat 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 theatre 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 estab- lish and apply the laws of war where no war has been declared or exists. Where peace exists, the laws of peace must prevail." This is sufficiently explicit. Peace exists in all the territory to which this bill applies. It asserts a power in Congress, in time of peace, to set aside the laws of peace and to substitute the laws of war. The minority, concurring with the majority, declares that Congress does not possess that power. Again^ and, if possible, more emphatically, the Chief Justice, with remarkable clearness and condensation, sums up the whole matter as follows : " There are under the Constitution three kinds of military jurisdiction— one to bo exer- cised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within States or dis- tricts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of the States maintaining adhesion to the National Government, when the public danger requires its exercise. The first of these may be called jurisdiction under Mujtaky Law, and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces ; the second may be distinguished as Mn.rrAKY Govi;i:xmi:nt, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress ; while tiie third may be denominated Mautiai, Law PkoI'KR, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion or of civil or foreign war, within districts or localities where ordinary law no longer adequately secures public safety and private rights."' It will be observed that of the three kinds of militar}' jurisdiction which can be exercised or created under our Constitution, there is but one that can prevail in time of peace, and that is the code of laws enacted by Con- 11 gress for the government of the national forces. That body of military law has no application to the citizen, nor even to the citizen soldier en- rolled in the militia in time of peace. But this bill is not a part of that sort of military law, for that applies only to the soldier and not to the citizen, whilst, contrariwise, the militar}" law provided by this bill applies only to the citizen and not to the soldier. I need not say to the Eepresentatives 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 jur}- is made indispensable by the express words of that instrument. I will not enlarge on the inesti- mable value of the right thus secured to every freeman, or speak of the danger to public libert}' in all parts of the country which must ensue from a denial of it anywhere or upon any pretence. A very recent de- cision of the Supreme Court has traced the history, vindicated the dig- nity, and made known the value of this great privilege so clearly that nothing more is needed. To what extent a violation of it might be ex- cused in time of war or public danger may admit of discussion, but we are providing now for a time of profound peace, where there is not an armed soldier within our borders except those who are in the service of the Government. It is in such a condition of things that an act of Con- gress is proposed which, if carried out, would deny a trial by the lawful courts and juries to nine millions of American citizens, and to their pos- terit}' for an indefinite period. It seems to be scarcely possible that any one should seriously believe this consistent with a Constitution which declares, in simple, plain, and unambiguous language, that all persons shall have that right, and that no person shall ever in any case be de- prived of it. The Constitution also forbids the arrest of the citizen without judicial warrant, founded on probable cause. This bill author- izes an arrest without warrant, at the pleasure of a militaiy commander. The Constitution declares that "no person shall be held to answer for a capital or otherwise infamous crime unless on presentment by a grand jury." This bill holds every person, not a soldier, answerable for all crimes and all charges without any presentment. The Constitution de- clares that '-no person shall be deprived of life, liberty, or property with- out 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 de- clares that "the privilege of the writ of habeas corpus shall not be sus- pended unless w^hen, in case of rebellion or invasion, the public safety may require it;" whereas this bill declares martial law (which of itself 12 suspends this great Avrit) in time of peace, and authorizes the military to make the arrest, and gives to the prisoner on!}' one privilege, and that is atrial "without unnecessar}^ delay." He has no hoi:)e 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 guai-antee to each State a republican form of government. Can it be pretended that this obligation is not pal- pably broken if we carry out a measure like this, which wipes away every vestige of republican government in ten States, and puts the life, property, liberty, and honor of all the people in each of them under the domination of a single person clothed with unlimited authority? The Parliament of England, exercising the omnipotent power which it claimed, was accustomed to pass bills of attainder; that is to say, it would convict men of treason and other crimes by legislative enactment. The person accused had a hearing, sometimes a patient and fair one; but generally party prejudice prevailed, instead of justice. It often became ne- cessary for Parliament to acknowledge its error and reverse its own action. The fathers of our country determined that no such thing should occur hei-e. They withheld the power from Congress, and thus forbade its ex- ercise by that body; and they provided in the Constitution that no State should pass any bill of attainder. It is, therefore, impossible for any person in this country to be constitutionall}' convicted or punished for any crime by a legislative proceeding of any sort. Nevertheless, here is a bill of attainder against nine millions of people at once. It is based upon an accusation so vague as to be scarcch* intelligible, and found to be true upon no credible evidence. Not one of the nine millions was heard in his own defence. The representatives of the doomed parties were excluded from all participation in the trial. The conviction is to be followed bj- 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 admilUd to be guiltless — from the rank of freemen to the condition of slaves. The purpose and object of the bill — the general intent wliieli 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 lor 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 Constitu- tion with ])rescribcd articles in it, and afterwards elect a Legislature 13 -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 Afri- canizing the Southern part of our territory, I would simpl}' ask the at- tention of Congress to that manifest, well-known, and universally' acknowledged rule of constitutional law, which declares that the Federal Government has no jurisdiction, authority, or power to regulate such subjects for any State. To force the right of suffrage out of the hands of the white people and into the hands of the negroes is an arbitrary violation of this principle. This bill imposes martial law at once, and its operations will begin so soon as the General and his troops can be put in place. The dread alter- native 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 deliber- ate. And when they have done all that this measure requires them to do, other conditions and contingencies, over which they have no control, yet remain to be fulfilled before they can be relieved from martial law. Another Congress must first approve the Constitutions made in con- formity with the will of this Congress, and must declare these States entitled to representation in both Houses. The whole question thus remains open and unsettled, and must again occup}' the attention of Con- gress, and in the meantime the agitation \vhich now prevails will con- tinue to disturb all portions of the people. The bill also denies the legality of the Governments of ten of the States which participated in the ratification of the amendment to the Federal Constitution abolishing slavery forever within the jurisdiction of the United States, and practically excludes them from the Union. If this assumption of the bill be correct, their concurrence cannot be con- sidered as having been legally given, and the important fact is made to apj)earthat the consent of three-fourths of the States — the requisite num- ber — has not been constitutionally obtained to the ratification of that amendment, thus leaving the question of slavery where it stood before the amendment was oflBcially declared to have become a part of the Con- stitution. That the measure proposed by this bill does violate the Constitution in the particulars mentioned, and in many other ways which I forbear to enumerate, is too clear to admit of the least doubt. It onl}- 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 pro- ceed to give as briefly as possible. 14 In the first place, it is the only sj'stem of free government which we can hope to have as a nation. When it ceases to be the rule of our con- duct, we may perhaps take our choice between comj)lete anarchy, a con- solidated despotism, and a total dissolution of the Union ; but national liberty, regulated by law, Avill have passed beyond our reach. It is the best frame of government the world ever saw. Xo other is or can be so well adapted to the genius, habits, or wants of the American people. Combining 'the strength of a great empire Avith unspeakable blessings of local self-government — having a central power to defend the general interests, and recognizing the authority of the States as the guardians of industrial rights, it is "the sheet-anchor of our safety abroad and our peace at home." It was ordained " to form a more per- fect union, establish justice, insure domestic tranquillity, promote the general welfare, provide for the common defence, and secure the blessings of liberty to ourselves and to our posterity." These great ends have been attained heretofore, and will be again, by faithful obedience to it, but they are certain to be lost if we treat with disregard its sacred obli- gations. It was to punish the gross crime of defying the Constitution, and to vindicate its supreme authority, that we carried on a bloody war of four years' duration. Shall we now acknowledge that we sacrificed a million of lives and expended billions of treasure to enforce a Constitution which is not worthy of respect and preservation? Those who advocated the right of secession alleged in their own justifica- tion that we had no regard for law, and that their rights of property', life, and liberty would not be safe under the Constitution, as administered by us. If we now verify their assertion, we prove that they were in truth and in fact fighting for their liberty, and instead of branding their leaders with the dishonoring: name of traitors acrainst a righteous and le