VETO MESSAGES.
WASHINGTON, D.C., March 25, 1868.
To the Senate of the United States:
I have considered, with such care as the pressure of other duties has permitted, a bill entitled "An act to amend an act entitled 'An act to amend the judiciary act, passed the 24th of September, 1789.'" Not being able to approve all of its provisions, I herewith return it to the Senate, in which House it originated, with a brief statement of my objections.
The first section of the bill meets my approbation, as, for the purpose of protecting the rights of property from the erroneous decision of inferior judicial tribunals, it provides means for obtaining uniformity, by appeal to the Supreme Court of the United States, in cases which have now become very numerous and of much public interest, and in which such remedy is not now allowed. The second section, however, takes away the right of appeal to that court in cases which involve the life and liberty of the citizen, and leaves them exposed to the judgment of numerous inferior tribunals. It is apparent that the two sections were conceived in a very different spirit, and I regret that my objections to one impose upon me the necessity of withholding my sanction from the other.
I can not give my assent to a measure which proposes to deprive any person "restrained of his or her liberty in violation of the Constitution or of any treaty or law of the United States" from the right of appeal to the highest judicial authority known to our Government. To "secure the blessings of liberty to ourselves and our posterity" is one of the declared objects of the Federal Constitution. To assure these, guaranties are provided in the same instrument, as well against "unreasonable searches and seizures" as against the suspensions of "the privilege of the writ of habeas corpus, * * * unless when, in cases of rebellion or invasion, the public safety may require it." It was doubtless to afford the people the means of protecting and enforcing these inestimable privileges that the jurisdiction which this bill proposes to take away was conferred upon the Supreme Court of the nation. The act conferring that jurisdiction was approved on the 5th day of February, 1867, with a full knowledge of the motives that prompted its passage, and because it was believed to be necessary and right. Nothing has since occurred to disprove the wisdom and justness of the measures, and to modify it as now proposed would be to lessen the protection of the citizen from the exercise of arbitrary power and to weaken the safeguards of life and liberty, which can never be made too secure against illegal encroachments.
The bill not only prohibits the adjudication by the Supreme Court of cases in which appeals may hereafter be taken, but interdicts its jurisdiction on appeals which have already been made to that high judicial body. If, therefore, it should become a law, it will by its retroactive operation wrest from the citizen a remedy which he enjoyed at the time of his appeal. It will thus operate most harshly upon those who believe that justice has been denied them in the inferior courts.
The legislation proposed in the second section, it seems to me, is not in harmony with the spirit and intention of the Constitution. It can not fail to affect most injuriously the just equipoise of our system of Government, for it establishes a precedent which, if followed, may eventually sweep away every check on arbitrary and unconstitutional legislation. Thus far during the existence of the Government the Supreme Court of the United States has been viewed by the people as the true expounder of their Constitution, and in the most violent party conflicts its judgments and decrees have always been sought and deferred to with confidence and respect. In public estimation it combines judicial wisdom and impartiality in a greater degree than any other authority known to the Constitution, and any act which may be construed into or mistaken for an attempt to prevent or evade its decision on a question which affects the liberty of the citizens and agitates the country can not fail to be attended with unpropitious consequences. It will be justly held by a large portion of the people as an admission of the unconstitutionally of the act on which its judgment may be forbidden or forestalled, and may interfere with that willing acquiescence in its provisions which is necessary for the harmonious and efficient execution of any law.
For these reasons, thus briefly and imperfectly stated, and for others, of which want of time forbids the enumeration, I deem it my duty to withhold my assent from this bill, and to return it for the reconsideration of Congress.
ANDREW JOHNSON.
WASHINGTON, D.C., June 20, 1868.
To the House of Representatives:
I return without my signature a bill entitled "An act to admit the State of Arkansas to representation in Congress."
The approval of this bill would be an admission on the part of the Executive that the "Act for the more efficient government of the rebel States," passed March 2, 1867, and the acts supplementary thereto were proper and constitutional. My opinion, however, in reference to those measures has undergone no change, but, on the contrary, has been strengthened by the results which have attended their execution. Even were this not the case, I could not consent to a bill which is based upon the assumption either that by an act of rebellion of a portion of its people the State of Arkansas seceded from the Union, or that Congress may at its pleasure expel or exclude a State from the Union, or interrupt its relations with the Government by arbitrarily depriving it of representation in the Senate and House of Representatives. If Arkansas is a State not in the Union, this bill does not admit it as a State into the Union. If, on the other hand, Arkansas is a State in the Union, no legislation is necessary to declare it entitled "to representation in Congress as one of the States of the Union." The Constitution already declares that "each State shall have at least one Representative;" that the Senate "shall be composed of two Senators from each State," and "that no State, without its consent, shall be deprived of its equal suffrage in the Senate."
That instrument also makes each House "the judge of the elections, returns, and qualifications of its own members," and therefore all that is now necessary to restore Arkansas in all its constitutional relations to the Government is a decision by each House upon the eligibility of those who, presenting their credentials, claim seats in the respective Houses of Congress. This is the plain and simple plan of the Constitution; and believing that had it been pursued when Congress assembled in the month of December, 1865, the restoration of the States would long since have been completed, I once again earnestly recommend that it be adopted by each House in preference to legislation, which I respectfully submit is not only of at least doubtful constitutionality, and therefore unwise and dangerous as a precedent, but is unnecessary, not so effective in its operation as the mode prescribed by the Constitution, involves additional delay, and from its terms may be taken rather as applicable to a Territory about to be admitted as one of the United States than to a State which has occupied a place in the Union for upward of a quarter of a century.
The bill declares the State of Arkansas entitled and admitted to representation in Congress as one of the States of the Union upon the following fundamental condition:
That the constitution of Arkansas shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote who are entitled to vote by the constitution herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted under laws equally applicable to all the inhabitants of said State: Provided, That any alteration of said constitution, prospective in its effect, may be made in regard to the time and place of residence of voters.
I have been unable to find in the Constitution of the United States any warrant for the exercise of the authority thus claimed by Congress. In assuming the power to impose a "fundamental condition" upon a State which has been duly "admitted into the Union upon an equal footing with the original States in all respects whatever," Congress asserts a right to enter a State as it may a Territory, and to regulate the highest prerogative of a free people—the elective franchise. This question is reserved by the Constitution to the States themselves, and to concede to Congress the power to regulate the subject would be to reverse the fundamental principle of the Republic and to place in the hands of the Federal Government, which is the creature of the States, the sovereignty which justly belongs to the States or the people—the true source of all political power, by whom our Federal system was created and to whose will it is subordinate.
The bill fails to provide in what manner the State of Arkansas is to signify its acceptance of the "fundamental condition" which Congress endeavors to make unalterable and irrevocable. Nor does it prescribe the penalty to be imposed should the people of the State amend or change the particular portions of the constitution which it is one of the purposes of the bill to perpetuate, but as to the consequences of such action leaves them in uncertainty and doubt. When the circumstances under which this constitution has been brought to the attention of Congress are considered, it is not unreasonable to suppose that efforts will be made to modify its provisions, and especially those in respect to which this measure prohibits any alteration. It is seriously questioned whether the constitution has been ratified by a majority of the persons who, under the act of March 2, 1867, and the acts supplementary thereto, were entitled to registration and to vote upon that issue. Section 10 of the schedule provides that—
No person disqualified from voting or registering under this constitution shall vote for candidates for any office, nor shall be permitted to vote for the ratification or rejection of the constitution at the polls herein authorized.
Assumed to be in force before its adoption, in disregard of the law of Congress, the constitution undertakes to impose upon the elector other and further conditions. The fifth section of the eighth article provides that "all persons, before registering or voting," must take and subscribe an oath which, among others, contains the following clause:
That I accept the civil and political equality of all men, and agree not to attempt to deprive any person or persons, on account of race, color, or previous condition, of any political or civil right, privilege, or immunity enjoyed by any other class of men.
It is well known that a very large portion of the electors in all the States, if not a large majority of all of them, do not believe in or accept the political equality of Indians, Mongolians, or negroes with the race to which they belong. If the voters in many of the States of the North and West were required to take such an oath as a test of their qualification, there is reason to believe that a majority of them would remain from the polls rather than comply with its degrading conditions. How far and to what extent this test oath prevented the registration of those who were qualified under the laws of Congress it is not possible to know, but that such was its effect, at least sufficient to overcome the small and doubtful majority in favor of this constitution, there can be no reasonable doubt. Should the people of Arkansas, therefore, desiring to regulate the elective franchise so as to make it conform to the constitutions of a large proportion of the States of the North and West, modify the provisions referred to in the "fundamental condition," what is to be the consequence? Is it intended that a denial of representation shall follow? And if so, may we not dread, at some future day, a recurrence of the troubles which have so long agitated the country? Would it not be the part of wisdom to take for our guide the Federal Constitution, rather than resort to measures which, looking only to the present, may in a few years renew, in an aggravated form, the strife and bitterness caused by legislation which has proved to be so ill timed and unfortunate?
ANDREW JOHNSON.
WASHINGTON, D.C., June 25, 1868.
To the House of Representatives:
In returning to the House of Representatives, in which it originated, a bill entitled "An act to admit the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida to representation in Congress," I do not deem it necessary to state at length the reasons which constrain me to withhold my approval. I will not, therefore, undertake at this time to reopen the discussion upon the grave constitutional questions involved in the act of March 2, 1867, and the acts supplementary thereto, in pursuance of which it is claimed, in the preamble to this bill, these States have framed and adopted constitutions of State government. Nor will I repeat the objections contained in my message of the 20th instant, returning without my signature the bill to admit to representation the State of Arkansas, and which are equally applicable to the pending measure.
Like the act recently passed in reference to Arkansas, this bill supersedes the plain and simple mode prescribed by the Constitution for the admission to seats in the respective Houses of Senators and Representatives from the several States. It assumes authority over six States of the Union which has never been delegated to Congress, or is even warranted by previous unconstitutional legislation upon the subject of restoration. It imposes conditions which are in derogation of the equal rights of the States, and is founded upon a theory which is subversive of the fundamental principles of the Government. In the case of Alabama it violates the plighted faith of Congress by forcing upon that State a constitution which was rejected by the people, according to the express terms of an act of Congress requiring that a majority of the registered electors should vote upon the question of its ratification.
For these objections, and many others that might be presented, I can not approve this bill, and therefore return it for the action of Congress required in such cases by the Federal Constitution.
ANDREW JOHNSON.
WASHINGTON, D.C., July 20, 1868.
To the Senate of the United States:
I have given to the joint resolution entitled "A resolution excluding from the electoral college the votes of States lately in rebellion which shall not have been reorganized" as careful examination as I have been able to bestow upon the subject during the few days that have intervened since the measure was submitted for my approval.
Feeling constrained to withhold my consent, I herewith return the resolution to the Senate, in which House it originated, with a brief statement of the reasons which have induced my action. This joint resolution is based upon the assumption that some of the States whose inhabitants were lately in rebellion are not now entitled to representation in Congress and participation in the election of President and Vice-President of the United States.
Having heretofore had occasion to give in detail my reasons for dissenting from this view, it is not necessary at this time to repeat them. It is sufficient to state that I continue strong in my conviction that the acts of secession, by which a number of the States sought to dissolve their connection with the other States and to subvert the Union, being unauthorized by the Constitution and in direct violation thereof, were from the beginning absolutely null and void. It follows necessarily that when the rebellion terminated the several States which had attempted to secede continued to be States in the Union, and all that was required to enable them to resume their relations to the Union was that they should adopt the measures necessary to their practical restoration as States. Such measures were adopted, and the legitimate result was that those States, having conformed to all the requirements of the Constitution, resumed their former relations, and became entitled to the exercise of all the rights guaranteed to them by its provisions.
The joint resolution under consideration, however, seems to assume that by the insurrectionary acts of their respective inhabitants those States forfeited their rights as such, and can never again exercise them except upon readmission into the Union on the terms prescribed by Congress. If this position be correct, it follows that they were taken out of the Union by virtue of their acts of secession, and hence that the war waged upon them was illegal and unconstitutional. We would thus be placed in this inconsistent attitude, that while the war was commenced and carried on upon the distinct ground that the Southern States, being component parts of the Union, were in rebellion against the lawful authority of the United States, upon its termination we resort to a policy of reconstruction which assumes that it was not in fact a rebellion, but that the war was waged for the conquest of territories assumed to be outside of the constitutional Union.
The mode and manner of receiving and counting the electoral votes for President and Vice-President of the United States are in plain and simple terms prescribed by the Constitution. That instrument imperatively requires that "the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted." Congress has, therefore, no power, under the Constitution, to receive the electoral votes or reject them. The whole power is exhausted when, in the presence of the two Houses, the votes are counted and the result declared. In this respect the power and duty of the President of the Senate are, under the Constitution, purely ministerial. When, therefore, the joint resolution declares that no electoral votes shall be received or counted from States that since the 4th of March, 1867, have not "adopted a constitution of State government under which a State government shall have organized," a power is assumed which is nowhere delegated to Congress, unless upon the assumption that the State governments organized prior to the 4th of March, 1867, were illegal and void.
The joint resolution, by implication at least, concedes that these States were States by virtue of their organization prior to the 4th of March, 1867, but denies to them the right to vote in the election of President and Vice-President of the United States. It follows either that this assumption of power is wholly unauthorized by the Constitution or that the States so excluded from voting were out of the Union by reason of the rebellion, and have never been legitimately restored. Being fully satisfied that they were never out of the Union, and that their relations thereto have been legally and constitutionally restored, I am forced to the conclusion that the joint resolution, which deprives them of the right to have their votes for President and Vice-President received and counted, is in conflict with the Constitution, and that Congress has no more power to reject their votes than those of the States which have been uniformly loyal to the Federal Union.
It is worthy of remark that if the States whose inhabitants were recently in rebellion were legally and constitutionally organized and restored to their rights prior to the 4th of March, 1867, as I am satisfied they were, the only legitimate authority under which the election for President and Vice-President can be held therein must be derived from the governments instituted before that period. It clearly follows that all the State governments organized in those States under act of Congress for that purpose, and under military control, are illegitimate and of no validity whatever; and in that view the votes cast in those States for President and Vice-President, in pursuance of acts passed since the 4th of March, 1867, and in obedience to the so-called reconstruction acts of Congress, can not be legally received and counted, while the only votes in those States that can be legally cast and counted will be those cast in pursuance of the laws in force in the several States prior to the legislation by Congress upon the subject of reconstruction.
I can not refrain from directing your special attention to the declaration contained in the joint resolution, that "none of the States whose inhabitants were lately in rebellion shall be entitled to representation in the electoral college," etc. If it is meant by this declaration that no State is to be allowed to vote for President and Vice-President all of whose inhabitants were engaged in the late rebellion, it is apparent that no one of the States will be excluded from voting, since it is well known that in every Southern State there were many inhabitants who not only did not participate in the rebellion, but who actually took part in the suppression, or refrained from giving it any aid or countenance. I therefore conclude that the true meaning of the joint resolution is that no State a portion of whose inhabitants were engaged in the rebellion shall be permitted to participate in the Presidential election, except upon the terms and conditions therein prescribed.
Assuming this to be the true construction of the resolution, the inquiry becomes pertinent, May those Northern States a portion of whose inhabitants were actually in the rebellion be prevented, at the discretion of Congress, from having their electoral votes counted? It is well known that a portion of the inhabitants of New York and a portion of the inhabitants of Virginia were alike engaged in the rebellion; yet it is equally well known that Virginia, as well as New York, was at all times during the war recognized by the Federal Government as a State in the Union—so clearly that upon the termination of hostilities it was not even deemed necessary for her restoration that a provisional governor should be appointed; yet, according to this joint resolution, the people of Virginia, unless they comply with the terms it prescribes, are denied the right of voting for President, while the people of New York, a portion of the inhabitants of which State were also in rebellion, are permitted to have their electoral votes counted without undergoing the process of reconstruction prescribed for Virginia. New York is no more a State than Virginia; the one is as much entitled to representation in the electoral college as the other. If Congress has the power to deprive Virginia of this right, it can exercise the same authority with respect to New York or any other of the States. Thus the result of the Presidential election may be controlled and determined by Congress, and the people be deprived of their right under the Constitution to choose a President and Vice-President of the United States.
If Congress were to provide by law that the votes of none of the States should be received and counted if cast for a candidate who differed in political sentiment with a majority of the two Houses, such legislation would at once be condemned by the country as an unconstitutional and revolutionary usurpation of power. It would, however, be exceedingly difficult to find in the Constitution any more authority for the passage of the joint resolution under consideration than for an enactment looking directly to the rejection of all votes not in accordance with the political preferences of a majority of Congress. No power exists in the Constitution authorizing the joint resolution or the supposed law—the only difference being that one would be more palpably unconstitutional and revolutionary than the other. Both would rest upon the radical error that Congress has the power to prescribe terms and conditions to the right of the people of the States to cast their votes for President and Vice-President.
For the reasons thus indicated I am constrained to return the joint resolution to the Senate for such further action thereon as Congress may deem necessary.
ANDREW JOHNSON.
WASHINGTON, July 25, 1868
To the Senate of the United States:
Believing that a bill entitled "An act relating to the Freedmen's Bureau, and providing for its discontinuance," interferes with the appointing power conferred by the Constitution upon the Executive, and for other reasons, which at this late period of the session time will not permit me to state, I herewith return it to the Senate, in which House it originated, without my approval.
ANDREW JOHNSON.