A Compilation of the Messages and Papers of the Presidents. Volume 6, part 2: Andrew Johnson

by Unknown

It is impossible to conceive any state of society more intolerable than this; and yet it is to this condition that 12,000,000 American citizens are reduced by the Congress of the United States. Over every foot of the immense territory occupied by these American citizens the Constitution of the United States is theoretically in full operation. It binds all the people there and should protect them; yet they are denied every one of its sacred guaranties.

Of what avail will it be to any one of these Southern people when seized by a file of soldiers to ask for the cause of arrest or for the production of the warrant? Of what avail to ask for the privilege of bail when in military custody, which knows no such thing as bail? Of what avail to demand a trial by jury, process for witnesses, a copy of the indictment, the privilege of counselor that greater privilege, the writ of habeas corpus?

The veto of the original bill of the 2d of March was based on two distinct grounds—the interference of Congress in matters strictly appertaining to the reserved powers of the States and the establishment of military tribunals for the trial of citizens in time of peace. The impartial reader of that message will understand that all that it contains with respect to military despotism and martial law has reference especially to the fearful power conferred on the district commanders to displace the criminal courts and assume jurisdiction to try and to punish by military boards; that, potentially, the suspension of the habeas corpus was martial law and military despotism. The act now before me not only declares that the intent was to confer such military authority, but also to confer unlimited military authority over all the other courts of the State and over all the officers of the State—legislative, executive, and judicial. Not content with the general grant of power, Congress, in the second section of this bill, specifically gives to each military commander the power "to suspend or remove from office, or from the performance of official duties and the exercise of official powers, any officer or person holding or exercising, or professing to hold or exercise, any civil or military office or duty in such district under any power, election, appointment, or authority derived from, or granted by, or claimed under any so-called State, or the government thereof, or any municipal or other division thereof."

A power that hitherto all the departments of the Federal Government, acting in concert or separately, have not dared to exercise is here attempted to be conferred on a subordinate military officer. To him, as a military officer of the Federal Government, is given the power, supported by "a sufficient military force," to remove every civil officer of the State. What next? The district commander, who has thus displaced the civil officer, is authorized to fill the vacancy by the detail of an officer or soldier of the Army, or by the appointment of "some other person."

This military appointee, whether an officer, a soldier, or "some other person," is to perform "the duties of such officer or person so suspended or removed." In other words, an officer or soldier of the Army is thus transformed into a civil officer. He may be made a governor, a legislator, or a judge. However unfit he may deem himself for such civil duties, he must obey the order. The officer of the Army must, if "detailed," go upon the supreme bench of the State with the same prompt obedience as if he were detailed to go upon a court-martial. The soldier, if detailed to act as a justice of the peace, must obey as quickly as if he were detailed for picket duty.

What is the character of such a military civil officer? This bill declares that he shall perform the duties of the civil office to which he is detailed. It is clear, however, that he does not lose his position in the military service. He is still an officer or soldier of the Army; he is still subject to the rules and regulations which govern it, and must yield due deference, respect, and obedience toward his superiors.

The clear intent of this section is that the officer or soldier detailed to fill a civil office must execute its duties according to the laws of the State. If he is appointed a governor of a State, he is to execute the duties as provided by the laws of that State, and for the time being his military character is to be suspended in his new civil capacity. If he is appointed a State treasurer, he must at once assume the custody and disbursement of the funds of the State, and must perform those duties precisely according to the laws of the State, for he is intrusted with no other official duty or other official power. Holding the office of treasurer and intrusted with funds, it happens that he is required by the State laws to enter into bond with security and to take an oath of office; yet from the beginning of the bill to the end there is no provision for any bond or oath of office, or for any single qualification required under the State law, such as residence, citizenship, or anything else. The only oath is that provided for in the ninth section, by the terms of which everyone detailed or appointed to any civil office in the State is required "to take and to subscribe the oath of office prescribed by law for officers of the United States." Thus an officer of the Army of the United States detailed to fill a civil office in one of these States gives no official bond and takes no official oath for the performance of his new duties, but as a civil officer of the State only takes the same oath which he had already taken as a military officer of the United States. He is, at last, a military officer performing civil duties, and the authority under which he acts is Federal authority only; and the inevitable result is that the Federal Government, by the agency of its own sworn officers, in effect assumes the civil government of the State.

A singular contradiction is apparent here. Congress declares these local State governments to be illegal governments, and then provides that these illegal governments shall be carried on by Federal officers, who are to perform the very duties imposed on its own officers by this illegal State authority. It certainly would be a novel spectacle if Congress should attempt to carry on a legal State government by the agency of its own officers. It is yet more strange that Congress attempts to sustain and carry on an illegal State government by the same Federal agency.

In this connection I must call attention to the tenth and eleventh sections of the bill, which provide that none of the officers or appointees of these military commanders "shall be bound in his action by any opinion of any civil officer of the United States," and that all the provisions of the act "shall be construed liberally, to the end that all the intents thereof may be fully and perfectly carried out."

It seems Congress supposed that this bill might require construction, and they fix, therefore, the rule to be applied. But where is the construction to come from? Certainly no one can be more in want of instruction than a soldier or an officer of the Army detailed for a civil service, perhaps the most important in a State, with the duties of which he is altogether unfamiliar. This bill says he shall not be bound in his action by the opinion of any civil officer of the United States. The duties of the office are altogether civil, but when he asks for an opinion he can only ask the opinion of another military officer, who, perhaps, understands as little of his duties as he does himself; and as to his "action," he is answerable to the military authority, and to the military authority alone. Strictly, no opinion of any civil officer other than a judge has a binding force.