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SIOIHEsTXL'T STUEBT
■ ARVirgXCELWL Ami,
fdedG
VETOES BY THE PRESIDENT
VETO OF THE MILITARY RECONSTRUCTION
BILL.
To the House of Representatives :
I have examined the bill "to provide for
the more fficient government of the rebel
States" with care and anxiety, which its
tran>cedent importance is calculated to
awaken, lam unable to give it my as
sent for reasons so grave that I hope a
statement of them may have some influence
on the minds of the patriotic and enlighten
ed men with whom the decision must ulti
mately rest.
The bill places all the people of the ten
State* therein named under the absolute
domination of military ruler# ; and the pre
amble undertakes to give the reason upon
which it is justified.
It declares th<-t there exists in those
States no 1 gal governments and no ade
quate protection tor life and pioperty, and
asserts the necessity of enforcing peace and
good order within their limits. 19 this
true a's 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 makeadminis
tor, and execute the laws which concern
their domestic affairs. An existing de 'ac
ta govt-rnment exercising such functions
as these is itself the law of the State upon
all matters within its jurisdiction. To pro
nounce the supreme law,making the power
of an established Slate illegal, is to say that
law itself is unlawful. The provisions which
these governments have made for the pres
ervation 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 certain
ly have not succeeded in preventing the
commission of all crime, nor has this been
accomplished anywhere in the world. There
as wel. as elsewhere, offenders sometimes j
escape for want of vigorous prosecution, ]
and occasionally, perhaps, by the inefficien
cy 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 lias engendered ; but
that these people are maintaining local gov
ernments f<r themselves which habitually
defeat the object of all governments, and
render their own lives and property insecure
i in itself utter'' itnr-ro! able, a <1 the aver
ment of the bill to that effect i- not suppor
ted bv any evidence which has come to rny
knowledge. All the information I have on
the subject convinces me that the masses
of the Southern people and thoe who con
trol their public acts, while thev entertain
diverse opinion# on questionsof federal pol
icy, are completely united in the effort to
reorganize their society on the basts ot peace,
and to restore their mutual prosperity as
rapidly and as completely as their circum
stances will permit. 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 pre
cerding sections shall cease to operate in
any State wlcre certain events shall have
happened. These events are : First, The
election <>f d- legates to a State Convention,
bv an election at which negroes shall be
Allowed to vote. Second, The formation of
a State constitutior., by th<- convention so
chdsen. 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" m n as may not be dis
franchised or rebellion or felony. Fourth,
The submission ot the constitution for rati
fication to n- groes and white m-n not dis
franchised. and its actual lat'fication by
their vote. Fifth, The submission of the
State constitution to Congr.-ss for examina
tion, and the actual approval of it bv 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 Con
stitution of the United States. All these
conditions must be fulfilled before tho peo
ple of any of these States can be relieved
from the bondage of military domination ;
but when they are fulfilled, then immedi
ately the pains and penalties of the bill are
to coase, no matter whether there is peace
or not, and without any reference to the
security of life anil property. The excuse
given for the bill in the preamble is admit
ted by the bill itself not to be real. The mil
itary 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 adop
tion of principles and mcasurea to which it
is known that they are opposed, and upon
which they have an undeniable right to ex
ercise their own judgment.
I submit to Congress whether this meas
ure is not in its whole character, scope, and
object, without precedent and without au
thority, in palpable conflict with the plain
est provisions of the Constitution,and utter
ly destructive of those great principles of
liberty and humanity for which our ances
tors of both sides of the Atlantic shed so
much blood and expended so much treasure
The ten States named in the bill are di
vided into five districts; for each district
an officer of the army not below the rank
"TO SPEAK. HIS THOUGHTS IS EVERY FREEMAN'S RlGHTS.'*—Tllomae JeflimD,
TUNKHANNOCK, PA-, WEDNESDAY, MAR- 13, 1867-
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 bis duties and en
force his authority.
Those duties aod that authority, at de
fined by tbe third section of the bill, are to
protect all pertons in their rights of per
son and property ; to suppress insurrection
oisorder, and violence ; and to punish, or
cause to b. punished, all disturbers of the
public peace or criminal#. The power thus
given to the coinmading officer over all the
people of each district is that of an absolute
monarch; bis mere will is to take the place
of all law. The law of the States is now
the only rule applicable to the subjects plac
ed under his control,and that is completely
displaced by the clause which declares all
interference of the State authority to be
null and void He alone is permitted to
determine what are the rights of persons
or pioperty, and he may protect them in
such wav as in his discretion may seem
properly. It places at his free disposal all
the land# and goods in his district, and he
may distribute them without let or hin
drance, to whom he pleases. Being
bound by no State law, and there being co
other law to regulate tbe 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 pas
sions in each case that arises. lie is bound
bv no rules of evidence ; there is indeed,
no provision by which he is authorized or
required to take 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 make any report or keep any
record of his proceedings. He may ar
rest his victim# wherever be finds them
without warrant, accusation, or proof of
probable cause. If he gives them a trial
before he inflicts the punishment he gives
it ot his grace and mercy, not because he
is commanded so to do. To a casual read
er of the bill, it might seem that some kind
of trial was secured by it to persons ac
cused of crime ; but such is not the case.
The officer may allow local, civil tribunals
to try offender# ; but of course this does
not require that he shall do so. If any
State or Federal Court presumes to exer
cise its legal jurisdiction by the trial of a
malefactor without his special permission,
he can break it up, and punish the judges
and jurors a# being themselves malefactors.
He car. save bis friend# from justice and
despoil his enemies contrary to justice. It
is also provided that he shall have power
to organize military commissions or tribu
nals, but tins power he is not commanded
to exercise. It is merely permissive, and
is to be used only when in his judgment
•it may be necessary for the trial #f offenders.
Even if the sentence of a commission were
made a prerequisite to the punishment of
a patty, it would be scarcely the slightest
check upon the officer, who has authority
to organize it a# he pleases, prescrib its
mode of proceeding, appoint its members
from among his own subordinates, and re
vise all its decisions. Instead of mitigating
the harshness of his single rule, such a
tribunal would be used much more proba
bly to divide the responsibility of making
it more cruel and unjust.
Several provision# dictated by the hu
manity of Congress have bc#n inserted in
the bill, apparently to restrain the power of
the commanding officer; but it seems to
me that they are of no avail for that pur
pose.
The fourth section provides—First, that
trial shall not be unnecessarily delayed :
but I think I have shown that the power
is given to punish without trial, an,! if so,
this provision is practically inoperative, —
Second. Cruel or unjust punishments are
not to be inflicted; but who is to decide
what is cruel and what unusual ? The
words have acquired a legal Yncaning by
long use in the com Is. Can't be expected
that military officer# 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 may define cruelty ac
cording to his own lernper; and if not
usual, he will make it usual. Coipotal
punishment, the gag, the ball and chain,
and the other almost insupportable forms
of torture invented fo military pnnith
ment, are within ths range of choice.—
T lird. The sentence of a commission is
to be executed without being approved by
the commander, if it affects life or liberty,
and a sentence of death must be ap
proved by the President This applies to
cases i i which there has been a trial and
sentence. I take it to be clear under the
bill that the mili ary commander may con
demn to death, without even the form of a
trial, by a military commission ; #o that
the life of the condemned may depend on
the will of two men instead of one. It is
plain that the authority here given to the
militarv officer amouut# to absolute des
pot is. n*. But to make it still more unen
durable, the bill provides that it may be
delegated to as many subordinate# a# he
chose 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 peo
ple who speak the English language have
borne such servitude. It reduces the
whole population of the ten States, all per
sons, 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
bis slaves as this bill gives to the military
officers over both white and colored per
sons. It may be answered to this that the
officers of the army are too magnaniomous,
just, and humane to oppress and trample
upon a Hubjngated people. Ido not doubt
that army officer# of the army are too mag
nanimous, just, and h'imane to oppress
and trample upon a subjugated people, 1
do not doubt that many officers are as well
entitled to this kind of confidence as any
other class ot men ; but the history of the
world has been wr.tten in vain if it does
not teach us that unrestrained authority
can never be safely trusted to human heads.
It is almost sure to be more or less abused
under any circumstances, and it has al
ways resulted in gross tyranny, where the
ruler# 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. Governments closely
resembling that here proposed have been
fairly tried in Hungary and Poland, and
the suffering endured by those people
aroused the sympathies ot the entire world
It was tried in Ireland ; and though first
tempered by principles of English law, it
gave birth to cruelties so atrocious that
they are never recounted without just in
dignation. The French Convention arm
ed its deputies with this power, and sent
them to the southern department# of the
republic. The massacres, murders, and
other atrocities which they committed show
what the passions of the ablest men in the
most civilized societ> will attempt to do
when wholly unrestrained by law. The
men of our race, in every age, have strug
gled to tie up the hands of their govern
ments and keep them within the law, be
cause 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 inild and patient sway; but the
kindness of an irresponsible deputy never
yields what the law does not extort from
him. Between such a master and the peo
ple subjugated to his domination there can
be DOtlnng but enmity. He punishes them
if they resist his authority, and if they sub
mit to it he hates them for their servility.
I come now to a question which is, if
possible, still more important. Have we
the power to establish and carry into exe
cution a measure like this? I answer,cer
tainly not if we derive our authority from
the Constitution and if we are bouou by
the limitations which it imposes. This
proposition is perteelly clear—that no
branch of the federal government, execu
tive, legislative, or judicial, can tiave any
just powers except those which it derives
through and exercises under the organic
law of the Union. Outside of the C'onsti
tuiioti we hare no legal authority more
than private citizens, and within it we have
only so much as that instrument gives us.
I Ins broad principle limits all our func
tions and applies to all subjects. It pro
tects not only tbe citizens of the United
States, who are within the Union, but it
shields every human being who comes or
is brought under onr jurisdiction. We have
ro right to do in one place more than in
another than which the Constitution #ays
we shall not do at all. If, therefore, the
Southern Slates were in truth out of the
Union, we could not treat their people in a
way which the fundamental law forbids.
Some people assume that the success of
our armies in crushing the opposition which
was made in some of the States to the ex
ecution of ihe 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 tallacy can be more
transparent than this. Our victories sub
jected the insurgents to legal obedience, not
to the yoke of an arhitary despotism.—
When au absolute sovereign reduces hi#
rebellion# subject# 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 te law. If an iusur
rection should take place in one of our
State# against the authority of the State
grverruuent, and end in the overthrow of
those who planned it, would that take away
the right# of AI! tbe people of the counties
where it was favored by a part or a ma
jority of the population! Could they for
such a reason be wholly outlawed and de
prived of their representation in the Legis
lature? I have always contended that the
government ot the United States was sov
ereign within its constitutional sphere; that
it executed its laws like the States them
selves, by applying its coercive power# di
rectly to indiciduaL, and that it could put
down insurrection with the same effect as
a State, uud no other. The opposite doc
trine is tbe worst heresy of those who ad
vocated secession, and cannot be agreed
without admitting that heresy to be right.
Invasion, insurrection, rebellion, and do
mestic violence were anticipated when the
government was framed, and the mean# of
repelling and suppressing them were wise
ly provided for in the Constitution: but it
was framed, and the means of repelling and
suppressing them were wisely provided for
in the Constitution ; but it was not thought
necessary that the State# in which they
might occur should be expelled from tbe
Union. Rebellious, which were invariably
suppressed, oecurred prior to that out ot
which these questions grew ; but the States
continued to exist, and the Union remain
ed unbroken. In Massachusetts, in Penn
sylvania iu Rhode Island,and in New-Y ork,
at differernt periods in our history, violent
j and armed opposition to the United States
was carried on ; but the relations of those
States with the federal government were
not supposed to be interrupted or changed
thereby alter the lebellious portions of their
population were defeated and put down.—-
It is true that in these earlier cases there
was DO formnl expression of a determina
tion to withdraw from the UnioD; but it
is also true that in the Southern Slates the
ordinances of secession were treated by all
the friends of the Union as mere nulitie*,
and are now acknowledged to be so by the
States themselves. If we admit tnat they
had any force of validity, or that they did
in fact take the States in which they were
passed out of the Union, we sweep from
under our feet all the grounds upon which
we 6tand in justifying the use of federal
force to maintain the integrity of the gov
ernment.
There is a bill passed by Congress in time
of peace. There i# not in any one ot the
States brought under its operation cither
wat or in#utrection ; the law# ot the State
and of the federal government are in un
disturbed and harmonious operation ; the
courts, State and federal, are open IU the
full exercise of their proper authority over
every State comprised in the live military
districts; life, liberty and property are
secured by State laws and federal law#,
and the national Constitution is everywhere
in force and everywhere obeyed. What,
then, is the ground on which this bill pro
ceeds ? The title of the bill announces that
it is intended for the ruore efficient govern
ment of these ten States. It is recited, by
way of preamble, that no loyal State govern
ments nor adequate protection for hie or
property exist iu those States, and good or
der should thus be enforced. Tne first
thing that arrests attention upon these re
citals which prepare the way for martial
law is this—that the only foundation upon
which martial law cau exist under our form
of government is uot stated, or so much as
pretended. Actual war, toteigu invasion,
domestic insurrection —none of these, ap
pear, and none of ttiese, in fact, exists. 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 pow
er of Congress, a recent decision ot the
Supreme Court of the United States iu
ex parte Milligan. 1 will first quote troiu
the opinion ot the majority of the court: —
"For martial law caunot arise from a threat
ened invasion. The necessity must be ac
tual and present, the invasion real, such as
effectually closes the courts and dispose#
the civil administration." We see that
martial law comes in only when actual war
closes the courts and depose# the civil au
thority. But tms bill, in time of peace
makes martial law operate as though *e
were in actual war, and becomes tne cause
instead ot the cous-queuce ef the abroga
tion of civil authority. Out more quota
tion : " It follow#, from what has been *aid
on the subject, that there are occasions
when martial law can he properly applied,
If in foreign invasion or civil ar the
courts are actually closed, and it is impossi
ble to administer criminal justice accuiding
to law, then on the theatre of active milita
ry operations, where war realiy prevails,
there is a necessity to furnish a substitute
for the civil authority thus overthrown to
preserve the satety of the army and socie
ty, and, as no power is left hut tbe military
it is allowed to govern by martial rule un
til the law# can have their free course." i
now quote from the opmton of the minority
of the court, delivered by Chief Justice
Chase: "We by no means assert that Con
gress can establish and apply the laws ot
war where no war has been declared or
exists; where peace exists the laws of
peace must prevail." Thi# is sufficiently
explicit—that peace exist# iu all the terri
tory to which this hill app'ies. It asserts a
power in Congress in time of peace to set
aside the laws of peace aod to substitute
the laws of war. The tuiuority, concurnug
with the majority, declares tuat Congress
dwes not possess that power. Again, and
if possible more emphatically, the Coet
Justice, with remarkable clearness and cou
densaiion, sums up the whole matter as fol
ows :
There are, ua4er the Constitutioa. three kind# of
military jiriedietion- one to be exerciied both in
peaee ana in war ; another to be exercifed in ti—.e
if foreign war, without the boundarie# of the Lai
ted States, or in time of rebellion and civil war with
in States or districts occupied by rebels treated as
b lligereats ; anl a third to be exercised iu time of
invasion or insurrection within tbe limits of the
United States, or during rebellion within the limits
of the Slates maintaining adhotioa to tbe national
government, when the public danger requires its ex
ercise The first of these may be called jurisdiction
■nder military law, and is found in acts of Congress
prescribing rules and articles ot war, or otherwise
providing for the government of the na
tional forces. The second may be distinguish
ed as military government, superseding, as far as
may be deemad expedient, the local Us, and exer
cised by the military oommand-r. under the direc
tion of the President, with tbe express or implied
sanetioD of Congress; while tbe third may b de
nominated martial law proper, and is called in o
action byCongres# or temporarily, when tne action
of Congress cannot be inviied, and ia the
esse of justifying or excusing peril, by the President
in times of insurrection or invasion, of civil or for
eign war, within distrits or localities where ordina
ry law no longer adequately secures public safety
or private right.
It will be observed that of tbe three
kinds of military jurisdiction which can be
exercised or created undei our Constitu
.ion there is but one that can prevail in
time of peace, and that is the code of laws
enacted by Congress for the government of
the national forces. That body of milita
ry IAW has no application to the citizen
not even to the citizen soldier enrolled 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 tbe soldier, and not
to the citizen ; while, coutrtriwise, the mil
| itary law provided by thi# bill applies only
I to the citizeo, and not to tb soldier.
TBHMS, M OO FXH
1 oeed not saJ to the Representatives of
the American people that their Constitu
tion forbids the exeiciseof judicial power
in any way but one—-that ia by the ordain
ed and established courts. It is equally
well known that in all criminal cases a tri
al by jury is made iudispensible by the
express words of that instrument. 1 will
not enlarge on the inestimable value of the
right thus secuied by ever freeman, or
speak of the danger to public liberty in all
parts of the country which must ensue from
a denial of it auywbere or upon any pre
tence. A very recent decision of the Su
preme Court has traced the history, vindi
cated the dignity, and made known the
value of this gieat privilege so cleat ly that
nothing is needed. To that extent a viola
tion of it may he excused iu time of war
or public danger may admit of discussion;
but we are providing now for a time of pro
found peace, when there is not an armed
soldier within our borders except those who
arc in the service of the government. It is
such a condition of things that an act of
Congress is proposed which, if carried out,
would deny a trial by the lawful courts and
juries t nine millions of American citizens
to their posterity lor an indefinite period,
it seems to be scarcely possible that any
one should seriously believe this consistent
with a Constitution which declares in sim
ple, plain, and unambiguous language that
all persons shall have that right, and that
no person shall ever in any case be depriv
ed ol it. The Constitution also forbids
the arrest of the citizen without judicial
| warrant founded on probable causa : this
bill authorizes an arreat without warrant
at the pleasure of a military commander.
The Constitution declares that no person
shall be held to answer for a capital or
otherwise iufamous crime unless on pre
sentment by a grand jury ; this bill holds
every person nowa soldier answerable tor
all crimes and all charges without any pre
sentment. The Constitution declares that
no persOQ shall be deprived of life, liberty
or property, witbout due process of law;
this bill sets aside ail process of Lw, and
makes the citizeu answerable in his person
and property to the wdl of one man,
and for Ins life to the will of two. Finally
the Constitution declares that ''the privilege
of the writ of imbeua corpus shall not be
suspended unless when, in case of rebellion
oi invasion, the public safety may require
itwhereat 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 prison
er only one privilege, and that is a trial
"without unnecessary delay." He has no
nope of release from custody except the
hope, such as it is, of release by acquittal
bctore a military commission. The Uni
ted states Hie bound to guarantee to each
Stale a republican form of government.—
Can it be pretended that this obligation is
uoi palpabiy broken it we carry out a mea
sure like this, which wipes away every ves
tige of republican government in ten States
and put the Ue, property, liberty, and hon
or ot -ill the people iu each of these under
the domination of a single person, clothed
with ununited authority ? The Parliament
of hli.glauJ, exercising the omnipotent pow
er which it claimed, was accustomed to
pass bills of attainder—that is to say, it
would convict men of treason and other
crimes ol legislative enactment. The per
son accused had a hearing, sometimes a
pritieui and fair oue, but generally party
prejudice prevailed iustcad of justice. It
otteu became necessary for Parliament to
acknowledge its error aud reverse its own
action. The fathers of our country d ter
uuued that uo such thing should occur here
liiey withheld the power from Congress
and thus forbade its exercise by that body,
and they provided in the Constitution that
uo anue should pass auy bill of attainder.
It is thcelose impossible yor any porson in
this country to ba constitutionally convict
ed or punuhed ior any crime by a legisla
tive prucetdiuo; of any sort, Nevertheless,
here is a bill of attainder against nine mil
lions ot peopie at once. It is based upon
an accusation so vague as to scarcely bcintel
ligiule,aud found to be true upon no cred
ible evidence. Not one of the nine mil
iums was beard in bis own defeace. The
representatives of the doomed parties were
excluded from all participation in the trial,
lhe couviction ia to be followed by the J
most ignominious punishment ever inflict
ed upuu large masses of men. It disfran
chise* them by hundreds of thousands, and
degrades them all, even those who are ad
mitted to be guiltless, from the rauk of.-
freemeu to the condition of slaves. The
purpose and object of the bill, the general
lutein which prevails from beginning to
end, is to change the entire structure and
character of the State governments, and tO f
compel them by force to the adoption of
orgauic laws and regulations which they
are unwilling to adopt if left to themselves,
The negroes have not asked for tie priv v
liege ot voting; the vast majority of them
have uo idea what it means. This bill not
only thrusts it into their haods, but compels
them as well as the whites tq use it it. a
particular way If they dp, npt form a
constitution with prescribed articles in it,
aud afterwards elect a legislature wh'cb
will act upou certain measures in a prescrib
ed way, m-ither blacks, nor whites can be
relieved from the slavery which the bill im
poses upou thein. Without pausing here
to consider the policy or impolicy of Afri
canizing the 6outhi-rn party ot our territory
1 would simply asfc tbe attention of Con
gress to that manifest, and uni
versally acknowledged rule of constitu
tional law which tleclaree that the federal
government ha* no jurisdiction, authority,
or power to regulate snob subject* for toy
VOL. 6 NO. 31