conducting trade with foreign markets.
If we have equal commercial facilities, we need not fear competition anywhere.
The laws have now directed a resumption of financial equality with other nations, and have ordered a return to the basis of coin values. It is of the greatest importance that the commercial condition now fortunately attained shall be made permanent, and that our rapidly increasing export trade shall not be allowed to suffer for want of the ordinary means of communication with other countries.
The accompanying reports contain a valuable and instructive summary of information with respect to our commercial interests in South America, where an inviting field for the enterprise of our people is presented. They are transmitted with the assurance that any measures that may be enacted in furtherance of these important interests will meet with my cordial approval.
R.B. HAYES.
EXECUTIVE MANSION, _Washington, January 7, 1879._
_To the House of Representatives_:
In answer to the resolution of the House of Representatives of the 4th of December last, I transmit herewith a report from the Secretary of State, with its accompanying papers.[23]
R.B. HAYES.
[Footnote 23: Correspondence relative to commercial relations with Mexico.]
WASHINGTON, _January 13, 1879._
_To the Senate of the United States_:
In answer to a resolution of the Senate of the 3d of June last, requesting a copy of correspondence between this Government and that of Her Britannic Majesty in regard to inviting other maritime powers to accede to the three rules of neutrality laid down in Article VI of the treaty of May 8, 1871, I transmit herewith a report of the Secretary of State, together with its accompanying papers.
R.B. HAYES.
EXECUTIVE MANSION, _January 20, 1879._
_To the Senate of the United States_:
In answer to a resolution of the Senate of the 17th of June last, requesting the Commissioner of Agriculture to send to the Senate certain reports on sheep husbandry, copies of the same, with accompanying papers, received from the Commissioner of Agriculture for this purpose, are herewith transmitted.
R.B. HAYES.
EXECUTIVE MANSION, _January 20, 1879._
_To the House of Representatives_:
In answer to resolution of the House of Representatives of the 16th instant, requesting the Commissioner of Agriculture to forward to the House any facts or statistics in his office on the subject of forestry not heretofore reported, copies of the same, with accompanying papers, received from the Commissioner for this purpose, are herewith transmitted.
R.B. HAYES.
WASHINGTON, D.C., _January 23, 1879._
_To the House of Representatives_:
In answer to a resolution of the 25th of May last, requesting information respecting the claim of Messrs. Carlos Butterfield & Co. against the Government of Denmark, I transmit herewith to the House of Representatives a report of the Secretary of State and its accompanying papers.
R.B. HAYES.
WASHINGTON, _January 24, 1879_.
_To the House of Representatives_:
In answer to a resolution of the House of Representatives of the 7th instant, I transmit herewith a report[24] from the Secretary of State, with its accompanying papers.
R.B. HAYES.
[Footnote 24: Relating to the claim of John C. Landreau against the Government of Peru.]
EXECUTIVE MANSION, _January 24, 1879_.
_To the Senate and House of Representatives_:
I transmit herewith, for the consideration of Congress, copies of a report and accompanying papers received from the Secretary of the Interior, upon a communication addressed to the President of the United States in behalf of a certain claim of the Choctaw Nation arising under the provisions of the Choctaw and Chickasaw treaty of June 22, 1855.
R.B. HAYES.
EXECUTIVE MANSION, _January 31, 1879_.
_To the Senate of the United States_:
I transmit herewith a letter of the Secretary of the Treasury, in relation to the suspension of the late collector and naval officer of the port of New York, with accompanying documents.
In addition thereto I respectfully submit the following observations:
The custom-house in New York collects more than two-thirds of all the customs revenues of the Government. Its administration is a matter not of local interest merely, but is of great importance to the people of the whole country. For a long period of time it has been used to manage and control political affairs.
The officers suspended by me are and for several years have been engaged in the active personal management of the party politics of the city and State of New York. The duties of the offices held by them have been regarded as of subordinate importance to their partisan work. Their offices have been conducted as part of the political machinery under their control. They have made the custom-house a center of partisan political management. The custom-house should be a business office. It should be conducted on business principles. General James, the postmaster of New York City, writing on this subject, says:
The post-office is a business institution, and should be run as such. It is my deliberate judgment that I and my subordinates can do more for the party of our choice by giving the people of this city a good and efficient postal service than by controlling primaries or dictating nominations.
The New York custom-house should be placed on the same footing with the New York post-office. But under the suspended officers the custom-house would be one of the principal political agencies in the State of New York. To change this, they profess to believe, would be, in the language of Mr. Cornell in his response, “to surrender their personal and political rights.”
Convinced that the people of New York and of the country generally wish the New York custom-house to be administered solely with a view to the public interest, it is my purpose to do all in my power to introduce into this great office the reforms which the country desires.
With my information of the facts in the case, and with a deep sense of the responsible obligation imposed upon me by the Constitution “to take care that the laws be faithfully executed,” I regard it as my plain duty to suspend the officers in question and to make the nominations now before the Senate, in order that this important office may be honestly and efficiently administered.
R.B. HAYES.
WASHINGTON, _February 6, 1879_.
_To the Senate of the United States_:
I transmit herewith, for the information of Congress, a report from the Secretary of State, with the accompanying papers therein referred to, in relation to the proceedings of the International Monetary Conference held at Paris in August, 1878.
R.B. HAYES.
EXECUTIVE MANSION, _February 8, 1879_.
_To the Senate and House of Representatives_:
I transmit herewith, for the consideration of Congress, the report of the commission appointed under the provisions of the act approved May 3, 1878, entitled “An act authorizing the President of the United States to make certain negotiations with the Ute Indians in the State of Colorado,” with copies of letters from the Secretary of the Interior and the Commissioner of Indian Affairs, and accompanying documents.
R.B. HAYES.
WASHINGTON, D.C., _February 15, 1879_.
_To the Senate and House of Representatives_:
I transmit herewith report from the Secretary of State, and accompanying papers, in relation to proceedings of the International Prison Congress of Stockholm, held in August last.
R.B. HAYES.
WASHINGTON, D.C., _February 18, 1879_.
_To the House of Representatives_:
I transmit herewith a report from the Secretary of State, dated the 17th instant, in relation to the destruction of the bark _Forest Belle_ in Chinese waters in March last, submitted in compliance with the resolution of the House of Representatives of February 4, 1879.
R.B. HAYES.
EXECUTIVE MANSION, _February 21, 1879_.
_To the Senate and House of Representatives_:
Referring to my communication to Congress under date of the 8th instant, transmitting the report of the commission appointed under the act entitled “An act authorizing the President of the United States to make certain negotiations with the Ute Indians in the State of Colorado,” I submit herewith a copy of a letter from the Secretary of the Interior and additional papers upon the same subject.
R.B. HAYES.
WASHINGTON, _February 28, 1879_.
_To the Senate of the United States_:
I transmit herewith a report from the Secretary of State, with its accompanying papers, submitted in pursuance of a resolution of the Senate of the 20th instant, in relation to railroads in Mexico.
R.B. HAYES.
WASHINGTON, _March 3, 1879._
_To the Senate and House of Representatives_:
I have received from the United States Centennial Commission their final report, presenting a full exhibit of the result of the United States Centennial Celebration and Exhibition of 1876, as required by the act of June 1, 1872.
In transmitting this report for the consideration of Congress, I express, I believe, the general judgment of the country, as well as my own, in assigning to this exhibition a measure of success gratifying to the pride and patriotism of our people and full of promise to the great industrial and commercial interests of the nation. The very ample and generous contributions which the foreign nations made to the splendor and usefulness of the exhibition and the cordiality with which their representatives took part in our national commemoration deserve our profound acknowledgments. At this close of the great services rendered by the United States Centennial Commission and the Centennial board of finance, it gives me great pleasure to commend to your attention and that of the people of the whole country the laborious, faithful, and prosperous performances of their duties which have marked the administration of their respective trusts.
R.B. HAYES.
VETO MESSAGE.
EXECUTIVE MANSION, _March 1, 1879._
_To the House of Representatives_:
After a very careful consideration of House bill 2423, entitled “An act to restrict the immigration of Chinese to the United States,” I herewith return it to the House of Representatives, in which it originated, with my objections to its passage.
The bill, as it was sent to the Senate from the House of Representatives, was confined in its provisions to the object named in its title, which is that of “An act to restrict the immigration of Chinese to the United States.” The only means adopted to secure the proposed object was the limitation on the number of Chinese passengers which might be brought to this country by any one vessel to fifteen; and as this number was not fixed in any proportion to the size or tonnage of the vessel or by any consideration of the safety or accommodation of these passengers, the simple purpose and effect of the enactment were to repress this immigration to an extent falling but little short of its absolute exclusion.
The bill, as amended in the Senate and now presented to me, includes an independent and additional provision which aims at and in terms requires the abrogation by this Government of Articles V and VI of the treaty with China commonly called the Burlingame treaty, through the action of the Executive enjoined by this provision of the act.
The Burlingame treaty, of which the ratifications were exchanged at Peking November 23, 1869, recites as the occasion and motive of its negotiation by the two Governments that “since the conclusion of the treaty between the United States of America and the Ta Tsing Empire (China) of the 18th of June, 1858, circumstances have arisen showing the necessity of additional articles thereto,” and proceeds to an agreement as to said additional articles. These negotiations, therefore, ending by the signature of the additional articles July 28, 1868, had for their object the completion of our treaty rights and obligations toward the Government of China by the incorporation of these new articles as thenceforth parts of the principal treaty to which they are made supplemental. Upon the settled rules of interpretation applicable to such supplemental negotiations the text of the principal treaty and of these “additional articles thereto” constitute one treaty from the conclusion of the new negotiations, in all parts of equal and concurrent force and obligation between the two Governments, and to all intents and purposes as if embraced in one instrument.
The principal treaty, of which the ratifications were exchanged August 16, 1859, recites that “the United States of America and the Ta Tsing Empire, desiring to maintain firm, lasting, and sincere friendship, have resolved to renew, in a manner clear and positive, by means of a treaty or general convention of peace, amity, and commerce, the rules which shall in future be mutually observed in the intercourse of their respective countries,” and proceeds in its thirty articles to lay out a careful and comprehensive system for the commercial relations of our people with China. The main substance of all the provisions of this treaty is to define and secure the rights of our people in respect of access to, residence and protection in, and trade with China. The actual provisions in our favor in these respects were framed to be, and have been found to be, adequate and appropriate to the interests of our commerce, and by the concluding article we receive the important guaranty that–
Should at any time the Ta Tsing Empire grant to any nation, or the merchants or citizens of any nation, any right, privilege, or favor, connected either with navigation, commerce, political or other intercourse, which is not conferred by this treaty, such right, privilege, and favor shall at once freely inure to the benefit of the United States, its public officers, merchants, and citizens.
Against this body of stipulations in our favor and this permanent engagement of equality in respect of all future concessions to foreign nations the general promise of permanent peace and good offices on our part seems to be the only equivalent. For this the first article undertakes as follows:
There shall be, as there have always been, peace and friendship between the United States of America and the Ta Tsing Empire, and between their people respectively. They shall not insult or oppress each other for any trifling cause, so as to produce an estrangement between them; and if any other nation should act unjustly or oppressively, the United States will exert their good offices, on being informed of the case, to bring about an amicable arrangement of the question, thus showing their friendly feelings.
At the date of the negotiation of this treaty our Pacific possessions had attracted a considerable Chinese emigration, and the advantages and the inconveniences felt or feared therefrom had become more or less manifest; but they dictated no stipulations on the subject to be incorporated in the treaty. The year 1868 was marked by the striking event of a spontaneous embassy from the Chinese Empire, headed by an American citizen, Anson Burlingame, who had relinquished his diplomatic representation of his own country in China to assume that of the Chinese Empire to the United States and the European nations. By this time the facts of the Chinese immigration and its nature and influences, present and prospective, had become more noticeable and were more observed by the population immediately affected and by this Government. The principal feature of the Burlingame treaty was its attention to and its treatment of the Chinese immigration and the Chinese as forming, or as they should form, a part of our population. Up to this time our uncovenanted hospitality to immigration, our fearless liberality of citizenship, our equal and comprehensive justice to all inhabitants, whether they abjured their foreign nationality or not, our civil freedom, and our religious toleration had made all comers welcome, and under these protections the Chinese in considerable numbers had made their lodgment upon our soil.
The Burlingame treaty undertakes to deal with this situation, and its fifth and sixth articles embrace its most important provisions in this regard and the main stipulations in which the Chinese Government has secured an obligatory protection of its subjects within our territory. They read as follows:
ART. V. The United States of America and the Emperor of China cordially recognize the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and subjects respectively from the one country to the other for purposes of curiosity, of trade, or as permanent residents. The high contracting parties therefore join in reprobating any other than an entirely voluntary emigration for these purposes. They consequently agree to pass laws making it a penal offense for a citizen of the United States or Chinese subjects to take Chinese subjects either to the United States or to any other foreign country, or for a Chinese subject or citizen of the United States to take citizens of the United States to China or to any other foreign country, without their free and voluntary consent, respectively.
ART. VI. Citizens of the United States visiting or residing in China shall enjoy the same privileges, immunities, or exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation, and, reciprocally, Chinese subjects visiting or residing in the United States shall enjoy the same privileges, immunities, and exemptions in respect to travel or residence as may there be enjoyed by the citizens or subjects of the most favored nation. But nothing herein contained shall be held to confer naturalization upon citizens of the United States in China, nor upon the subjects of China in the United States.
An examination of these two articles in the light of the experience then influential in suggesting their “necessity” will show that the fifth article was framed in hostility to what seemed the principal mischief to be guarded against, to wit, the introduction of Chinese laborers by methods which should have the character of a forced and servile importation, and not of a voluntary emigration of freemen seeking our shores upon motives and in a manner consonant with the system of our institutions and approved by the experience of the nation. Unquestionably the adhesion of the Government of China to these liberal principles of freedom in emigration, with which we were so familiar and with which we were so well satisfied, was a great advance toward opening that Empire to our civilization and religion, and gave promise in the future of greater and greater practical results in the diffusion throughout that great population of our arts and industries, our manufactures, our material improvements, and the sentiments of government and religion which seem to us so important to the welfare of mankind. The first clause of this article secures this acceptance by China of the American doctrines of free migration to and fro among the peoples and races of the earth.
The second clause, however, in its reprobation of “any other than an entirely voluntary emigration” by both the high contracting parties, and in the reciprocal obligations whereby we secured the solemn and unqualified engagement on the part of the Government of China “to pass laws making it a penal offense for a citizen of the United States or Chinese subjects to take Chinese subjects either to the United States or to any other foreign country without their free and voluntary consent,” constitutes the great force and value of this article. Its importance both in principle and in its practical service toward our protection against servile importation in the guise of immigration can not be overestimated. It commits the Chinese Government to active and efficient measures to suppress this iniquitous system, where those measures are most necessary and can be most effectual. It gives to this Government the footing of a treaty right to such measures and the means and opportunity of insisting upon their adoption and of complaint and resentment at their neglect. The fifth article, therefore, if it fall short of what the pressure of the later experience of our Pacific States may urge upon the attention of this Government as essential to the public welfare, seems to be in the right direction and to contain important advantages which once relinquished can not be easily recovered.
The second topic which interested the two Governments under the actual condition of things which prompted the Burlingame treaty was adequate protection, under the solemn and definite guaranties of a treaty, of the Chinese already in this country and those who should seek our shores. This was the object, and forms the subject of the sixth article, by whose reciprocal engagement the citizens and subjects of the two Governments, respectively, visiting or residing in the country of the other are secured the same privileges, immunities, or exemptions there enjoyed by the citizens or subjects of the most favored nations. The treaty of 1858, to which these articles are made supplemental, provides for a great amount of privilege and protection, both of person and property, to American citizens in China, but it is upon this sixth article that the main body of the treaty rights and securities of the Chinese already in this country depends. Its abrogation, were the rest of the treaty left in force, would leave them to such treatment as we should voluntarily accord them by our laws and customs. Any treaty obligation would be wanting to restrain our liberty of action toward them, or to measure or sustain the right of the Chinese Government to complaint or redress in their behalf.
The lapse of ten years since the negotiation of the Burlingame treaty has exhibited to the notice of the Chinese Government, as well as to our own people, the working of this experiment of immigration in great numbers of Chinese laborers to this country, and their maintenance here of all the traits of race, religion, manners, and customs, habitations, mode of life, segregation here, and the keeping up of the ties of their original home, which stamp them as strangers and sojourners, and not as incorporated elements of our national life and growth. This experience may naturally suggest the reconsideration of the subject as dealt with by the Burlingame treaty, and may properly become the occasion of more and circumspect recognition, in renewed negotiations, of the difficulties surrounding this political and social problem. It may well be that, to the apprehension of the Chinese Government no less than our own, the simple provisions of the Burlingame treaty may need to be replaced by more careful methods, securing the Chinese and ourselves against a larger and more rapid infusion of this foreign race than our system of industry and society can take up and assimilate with ease and safety. This ancient Government, ruling a polite and sensitive people, distinguished by a high sense of national pride, may properly desire an adjustment of their relations with us which would in all things confirm and in no degree endanger the permanent peace and amity and the growing commerce and prosperity which it has been the object and the effect of our existing treaties to cherish and perpetuate.
I regard the very grave discontents of the people of the Pacific States with the present working of the Chinese immigration, and their still graver apprehensions therefrom in the future, as deserving the most serious attention of the people of the whole country and a solicitous interest on the part of Congress and the Executive. If this were not my own judgment, the passage of this bill by both Houses of Congress would impress upon me the seriousness of the situation, when a majority of the representatives of the people of the whole country had thought fit to justify so serious a measure of relief.
The authority of Congress to terminate a treaty with a foreign power by expressing the will of the nation no longer to adhere to it is as free from controversy under our Constitution as is the further proposition that the power of making new treaties or modifying existing treaties is not lodged by the Constitution in Congress, but in the President, by and with the advice and consent of the Senate, as shown by the concurrence of two-thirds of that body. A denunciation of a treaty by any government is confessedly justifiable only upon some reason both of the highest justice and of the highest necessity. The action of Congress in the matter of the French treaties in 1798, if it be regarded as an abrogation by this nation of a subsisting treaty, strongly illustrates the character and degree of justification which was then thought suitable to such a proceeding. The preamble of the act recites that the–
Treaties concluded between the United States and France have been repeatedly violated on the part of the French Government, and the just claims of the United States for reparation of the injuries so committed have been refused, and their attempts to negotiate an amicable adjustment of all complaints between the two nations have been repelled with indignity.
And that–
Under authority of the French Government there is yet pursued against the United States a system of predatory violence, infracting the said treaties and hostile to the rights of a free and independent nation.
The enactment, as a logical consequence of these recited facts, declares–
That the United States are of right freed and exonerated from the stipulations of the treaties and of the consular convention heretofore concluded between the United States and France, and that the same shall not henceforth be regarded as legally obligatory on the Government or citizens of the United States.
The history of the Government shows no other instance of an abrogation of a treaty by Congress.
Instances have sometimes occurred where the ordinary legislation of Congress has, by its conflict with some treaty obligation of the Government toward a foreign power, taken effect as an _infraction_ of the treaty, and been judicially declared to be operative to that result; but neither such legislation nor such judicial sanction of the same has been regarded as an _abrogation_, even for the moment, of the treaty. On the contrary, the treaty in such case still subsists between the governments, and the casual infraction is repaired by appropriate satisfaction in maintenance of the treaty.
The bill before me does not enjoin upon the President the abrogation of the entire Burlingame treaty, much less of the principal treaty of which it is made the supplement. As the power of modifying an existing treaty, whether by adding or striking out provisions, is a part of the treaty-making power under the Constitution, its exercise is not competent for Congress, nor would the assent of China to this partial abrogation of the treaty make the action of Congress in thus procuring an amendment of a treaty a competent exercise of authority under the Constitution. The importance, however, of this special consideration seems superseded by the principle that a denunciation of a part of a treaty not made by the terms of the treaty itself separable from the rest is a denunciation of the whole treaty. As the other high contracting party has entered into no treaty obligations except such as include the part denounced, the denunciation by one party of the part necessarily liberates the other party from the whole treaty.
I am convinced that, whatever urgency might in any quarter or by any interest be supposed to require an instant suppression of further immigration from China, no reasons can require the immediate withdrawal of our treaty protection of the Chinese already in this country, and no circumstances can tolerate an exposure of our citizens in China, merchants or missionaries, to the consequences of so sudden an abrogation of their treaty protection. Fortunately, however, the actual recession in the flow of the emigration from China to the Pacific Coast, shown by trustworthy statistics, relieves us from any apprehension that the treatment of the subject in the proper course of diplomatic negotiations will introduce any new features of discontent or disturbance among the communities directly affected. Were such delay fraught with more inconveniences than have ever been suggested by the interests most earnest in promoting this legislation, I can not but regard the summary disturbance of our existing treaties with China as greatly more inconvenient to much wider and more permanent interests of the country.
I have no occasion to insist upon the more general considerations of interest and duty which sacredly guard the faith of the nation, in whatever form of obligation it may have been given. These sentiments animate the deliberations of Congress and pervade the minds of our whole people. Our history gives little occasion for any reproach in this regard; and in asking the renewed attention of Congress to this bill I am persuaded that their action will maintain the public duty and the public honor.
R.B. HAYES.
PROCLAMATION.
BY THE PRESIDENT OF THE UNITED STATES OF AMERICA.
A PROCLAMATION.
Whereas the final adjournment of the Forty-fifth Congress without making the usual and necessary appropriations for the legislative, executive, and judicial expenses of the Government for the fiscal year ending June 30, 1880, and without making the usual and necessary appropriations for the support of the Army for the same fiscal year, presents an extraordinary occasion requiring the President to exercise the power vested in him by the Constitution to convene the Houses of Congress in anticipation of the day fixed by law for their next meeting:
Now, therefore, I, Rutherford B. Hayes, President of the United States, do, by virtue of the power to this end in me vested by the Constitution, convene both Houses of Congress to assemble at their respective chambers at 12 o’clock noon on Tuesday, the 18th day of March instant, then and there to consider and determine such measures as in their wisdom their duty and the welfare of the people may seem to demand.
[SEAL.]
In witness whereof I have hereunto set my hand and caused the seal of the United States to be affixed.
Done at the city of Washington, this 4th day of March, A.D. 1879, and of the Independence of the United States of America the one hundred and third.
R.B. HAYES.
By the President:
WM. M. EVARTS,
_Secretary of State_.
SPECIAL SESSION MESSAGE.
WASHINGTON, _March 19, 1879_.
_Fellow-Citizens of the Senate and House of Representatives:_
The failure of the last Congress to make the requisite appropriations for legislative and judicial purposes, for the expenses of the several Executive Departments of the Government, and for the support of the Army has made it necessary to call a special session of the Forty-sixth Congress.
The estimates of the appropriations needed which were sent to Congress by the Secretary of the Treasury at the opening of the last session are renewed, and are herewith transmitted to both the Senate and the House of Representatives.
Regretting the existence of the emergency which requires a special session of Congress at a time when it is the general judgment of the country that the public welfare will be best promoted by permanency in our legislation and by peace and rest, I commend these few necessary measures to your considerate attention.
RUTHERFORD B. HAYES.
SPECIAL MESSAGES.
WASHINGTON, _March 20, 1879_.
_To the Senate of the United States_:
In compliance with the resolution of the Senate of the 3d instant, calling for the reports of Gustavus Goward on the Samoan Islands, I transmit herewith a report from the Secretary of State, with the accompanying papers.
R.B. HAYES.
EXECUTIVE MANSION, _April 18, 1879_.
_To the Senate of the United States_:
In compliance with a resolution of the Senate of the 15th instant, I transmit herewith a copy of the report of the commission appointed by the President on the 15th of March, 1872, relating to the different interoceanic canal surveys and the practicability of the construction of a ship canal across this continent.
R.B. HAYES.
EXECUTIVE MANSION, _May 15, 1879_.
_To the Senate of the United States_:
In response to a resolution of the Senate of the 7th instant, requesting information in reference to an alleged occupation of a portion of the Indian Territory by white settlers, etc., I transmit herewith a copy of my proclamation dated April 26, 1879;[25] also copies of the correspondence and papers on file and of record in the Department of the Interior and the War Department touching the subject of the resolution.
R.B. HAYES.
[Footnote 25: See pp. 547-548.]
EXECUTIVE MANSION, _May 26, 1879_.
_To the Senate of the United States_:
In response to a resolution of the Senate of the 14th instant, I transmit herewith a communication[26] from the Secretary of the Interior and accompanying papers.
R.B. HAYES.
[Footnote 26: Relating to lands in the Indian Territory acquired by the treaties of 1866.]
EXECUTIVE MANSION, _June 5, 1879_.
_To the Senate and House of Representatives_:
I transmit herewith the “proceedings and report” of the board of officers convened by Special Orders, No. 78, Headquarters of the Army, Washington, April 12, 1878, in the case of Fitz John Porter. The report of the board was made in March last, but the official record of the proceedings did not reach me until the 3d instant.
I have given to this report such examination as satisfies me that I ought to lay the proceedings and conclusions of the board before Congress. As I am without power, in the absence of legislation, to act upon the recommendations of the report further than by submitting the same to Congress, the proceedings and conclusions of the board are transmitted for the information of Congress and such action as in your wisdom shall seem expedient and just.
R.B. HAYES.
WASHINGTON, _June 13, 1879_.
_To the House of Representatives_:
I transmit herewith, in compliance with the resolution of the House of Representatives of the 29th ultimo, a report of the Secretary of State relative to the steps taken by this Government to promote the establishment of an interoceanic canal across or near the Isthmus of Darien.
R.B. HAYES.
WASHINGTON, _June 23, 1879_.
_To the Senate of the United States_:
I transmit herewith to the Senate a report from the Secretary of State, in response to a resolution of that body of the 20th instant, calling for the proceedings and accompanying papers of the International Silver Conference held in Paris in 1878.
R.B. HAYES.
EXECUTIVE MANSION, _June 30, 1879_.
_To the Senate and House of Representatives_:
The bill making provision for the payment of the fees of United States marshals and their general deputies, which I have this day returned to the House of Representatives, in which it originated, with my objections,[27] having upon its reconsideration by that body failed to become a law, I respectfully call your attention to the immediate necessity of making some adequate provision for the due and efficient execution by the marshals and deputy marshals of the United States of the constant and important duties enjoined upon them by the existing laws. All appropriations to provide for the performance of these indispensable duties expire to-day. Under the laws prohibiting public officers from involving the Government in contract liabilities beyond actual appropriations, it is apparent that the means at the disposal of the executive department for executing the laws through the regular ministerial officers will after to-day be left inadequate. The suspension of these necessary functions in the orderly administration of the first duties of government for the shortest period is inconsistent with the public interests, and at any moment may prove inconsistent with the public safety.
It is impossible for me to look without grave concern upon a state of things which will leave the public service thus unprovided for and the public interests thus unprotected, and I earnestly urge upon your attention the necessity of making immediate appropriations for the maintenance of the service of the marshals and deputy marshals for the fiscal year which commences to-morrow.
RUTHERFORD B. HAYES.
[Footnote 27: See pp. 545-547.]
WASHINGTON, _July 1, 1879_.
_To the Senate of the United States_:
In answer to a resolution of the Senate of the 28th June, 1879, requesting a copy of any correspondence which may have passed between the Department of State and the Republic of Mexico in regard to the proposed Austin-Topolovampo Railroad survey across the northern States of that country, I transmit herewith the report of the Secretary of State upon the subject.
R.B. HAYES.
VETO MESSAGES.
EXECUTIVE MANSION, _April 29, 1879_.
_To the House of Representatives_:
I have maturely considered the important questions presented by the bill entitled “An act making appropriations for the support of the Army for the fiscal year ending June 30, 1880, and for other purposes,” and I now return it to the House of Representatives, in which it originated, with my objections to its approval.
The bill provides in the usual form for the appropriations required for the support of the Army during the next fiscal year. If it contained no other provisions, it would receive my prompt approval. It includes, however, further legislation, which, attached, as it is, to appropriations which are requisite for the efficient performance of some of the most necessary duties of the Government, involves questions of the gravest character. The sixth section of the bill is amendatory of the statute now in force in regard to the authority of persons in the civil, military, and naval service of the United States “at the place where any general or special election is held in any State.” This statute was adopted February 25, 1865, after a protracted debate in the Senate, and almost without opposition in the House of Representatives, by the concurrent votes of both of the leading political parties of the country, and became a law by the approval of President Lincoln. It was reenacted in 1874 in the Revised Statutes of the United States, sections 2002 and 5528, which are as follows:
SEC. 2002. No military or naval officer, or other person engaged in the civil, military, or naval service of the United States, shall order, bring, keep, or have under his authority or control any troops or armed men at the place where any general or special election is held in any State, unless it be necessary to repel the armed enemies of the United States or to keep the peace at the polls.
SEC. 5528. Every officer of the Army or Navy, or other person in the civil, military, or naval service of the United States, who orders, brings, keeps, or has under his authority or control any troops or armed men at any place where a general or special election is held in any State, unless such force be necessary to repel armed enemies of the United States or to keep the peace at the polls, shall be fined not more than $5,000 and surfer imprisonment at hard labor not less than three months nor more than five years.
The amendment proposed to this statute in the bill before me omits from both of the foregoing sections the words “or to keep the peace at the polls,” The effect of the adoption of this amendment may be considered–
First. Upon the right of the United States Government to use military force to keep the peace at the elections for Members of Congress; and
Second. Upon the right of the Government, by civil authority, to protect these elections from violence and fraud.
In addition to the sections of the statute above quoted, the following provisions of law relating to the use of the military power at the elections are now in force:
SEC. 2003. No officer of the Army or Navy of the United States shall prescribe or fix, or attempt to prescribe or fix, by proclamation, order, or otherwise, the qualifications of voters in any State, or in any manner interfere with the freedom of any election in any State, or with the exercise of the free right of suffrage in any State.
SEC. 5529. Every officer or other person in the military or naval service who, by force, threat, intimidation, order, advice, or otherwise, prevents, or attempts to prevent, any qualified voter of any State from freely exercising the right of suffrage at any general or special election in such State shall be fined not more than $5,000 and imprisoned at hard labor not more than five years.
SEC. 5530. Every officer of the Army or Navy who prescribes or fixes, or attempts to prescribe or fix, whether by proclamation, order, or otherwise, the qualifications of voters at any election in any State shall be punished as provided in the preceding section.
SEC. 5531. Every officer or other person in the military or naval service who, by force, threat, intimidation, order, or otherwise, compels, or attempts to compel, any officer holding an election in any State to receive a vote from a person not legally qualified to vote, or who imposes, or attempts to impose, any regulations for conducting any general or special election in a State different from those prescribed by law, or who interferes in any manner with any officer of an election in the discharge of his duty, shall be punished as provided in section 5529.
SEC. 5532. Every person convicted of any of the offenses specified in the five preceding sections shall, in addition to the punishments therein severally prescribed, be disqualified from holding any office of honor, profit, or trust under the United States; but nothing in those sections shall be construed to prevent any officer, soldier, sailor, or marine from exercising the right of suffrage in any election district to which he may belong, if otherwise qualified according to the laws of the State in which he offers to vote.
The foregoing enactments would seem to be sufficient to prevent military interference with the elections. But the last Congress, to remove all apprehension of such interference, added to this body of law section 15 of an act entitled “An act making appropriations for the support of the Army for the fiscal year ending June 30, 1879, and for other purposes,” approved June 18, 1878, which is as follows:
SEC. 15. From and after the passage of this act it shall not be lawful to employ any part of the Army of the United States, as a _posse comitatus_ or otherwise, for the purpose of executing the laws, except in such cases and under such circumstances as such employment of said force may be expressly authorized by the Constitution or by act of Congress; and no money appropriated by this act shall be used to pay any of the expenses incurred in the employment of any troops in violation of this section; and any person willfully violating the provisions of this section shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by fine not exceeding $10,000 or imprisonment not exceeding two years, or by both such fine and imprisonment.
This act passed the Senate, after full consideration, without a single vote recorded against it on its final passage, and, by a majority of more than two-thirds, it was concurred in by the House of Representatives.
The purpose of the section quoted was stated in the Senate by one of its supporters as follows:
Therefore I hope, without getting into any controversy about the past, but acting wisely for the future, that we shall take away the idea that the Army can be used by a general or special deputy marshal, or any marshal, merely for election purposes, as a posse, ordering them about the polls or ordering them anywhere else, when there is an election going on, to prevent disorders or to suppress disturbances that should be suppressed by the peace officers of the State; or, if they must bring others to their aid they should summon the unorganized citizens, and not summon the officers and men of the Army as _posse comitatus_ to quell disorders, and thus get up a feeling which will be disastrous to peace among the people of the country.
In the House of Representatives the object of the act of 1878 was stated by the gentleman who had it in charge in similar terms. He said:
But these are all minor points and insignificant questions compared with the great principle which was incorporated by the House in the bill in reference to the use of the Army in time of peace. The Senate had already conceded what they called and what we might accept as the principle, but they had stricken out the penalty, and had stricken out the word “_expressly_” so that the Army might be used in all cases where _implied_ authority might be inferred. The House committee planted themselves firmly upon the doctrine that rather than yield this fundamental principle, for which for three years this House had struggled, they would allow the bill to fail, notwithstanding the reforms which we had secured, regarding these reforms as of but little consequence alongside the great principle that the Army of the United States, in time of peace, should be under the control of Congress and obedient to its laws. After a long and protracted negotiation, the Senate committee have conceded that principle in all its length and breadth, including the penalty, which the Senate had stricken out. We bring you back, therefore, a report, with the alteration of a single word, which the lawyers assure me is proper to be made, restoring to this bill the principle for which we have contended so long, and which is so vital to secure the rights and liberties of the people.
* * * * *
Thus have we this day secured to the people of this country the same great protection against a standing army which cost a struggle of two hundred years for the Commons of England to secure for the British people.
From this brief review of the subject it sufficiently appears that under existing laws there can be no military interference with the elections. No case of such interference has, in fact, occurred since the passage of the act last referred to. No soldier of the United States has appeared under orders at any place of election in any State. No complaint even of the presence of United States troops has been made in any quarter. It may therefore be confidently stated that there is no necessity for the enactment of section 6 of the bill before me to prevent military interference with the elections. The laws already in force are all that is required for that end.
But that part of section 6 of this bill which is significant and vitally important is the clause which, if adopted, will deprive the civil authorities of the United States of all power to keep the peace at the Congressional elections. The Congressional elections in every district, in a very important sense, are justly a matter of political interest and concern throughout the whole country. Each State, every political party, is entitled to the share of power which is conferred by the legal and constitutional suffrage. It is the right of every citizen possessing the qualifications prescribed by law to cast one unintimidated ballot and to have his ballot honestly counted. So long as the exercise of this power and the enjoyment of this right are common and equal, practically as well as formally, submission to the results of the suffrage will be accorded loyally and cheerfully, and all the departments of Government will feel the true vigor of the popular will thus expressed.
Two provisions of the Constitution authorize legislation by Congress for the regulation of the Congressional elections.
Section 4 of Article I of the Constitution declares–
The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing Senators.
The fifteenth amendment of the Constitution is as follows:
SEC. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
SEC. 2. The Congress shall have power to enforce this article by appropriate legislation.
The Supreme Court has held that this amendment invests the citizens of the United States with a new constitutional right which is within the protecting power of Congress. That right the court declares to be exemption from discrimination in the exercise of the elective franchise on account of race, color, or previous condition of servitude. The power of Congress to protect this right by appropriate legislation is expressly affirmed by the court.
National legislation to provide safeguards for free and honest elections is necessary, as experience has shown, not only to secure the right to vote to the enfranchised race at the South, but also to prevent fraudulent voting in the large cities of the North. Congress has therefore exercised the power conferred by the Constitution, and has enacted certain laws to prevent discriminations on account of race, color, or previous condition of servitude, and to punish fraud, violence, and intimidation at Federal elections. Attention is called to the following sections of the Revised Statutes of the United States, viz:
Section 2004, which guarantees to all citizens the right to vote, without distinction on account of race, color, or previous condition of servitude.
Sections 2005 and 2006, which guarantee to all citizens equal opportunity, without discrimination, to perform all the acts required by law as a prerequisite or qualification for voting.
Section 2022, which authorizes the United States marshal and his deputies to keep the peace and preserve order at the Federal elections.
Section 2024, which expressly authorizes the United States marshal and his deputies to summon a _posse comitatus_ whenever they or any of them are forcibly resisted in the execution of their duties under the law or are prevented from executing such duties by violence.
Section 5522, which provides for the punishment of the crime of interfering with the supervisors of elections and deputy marshals in the discharge of their duties at the elections of Representatives in Congress.
These are some of the laws on this subject which it is the duty of the executive department of the Government to enforce. The intent and effect of the sixth section of this bill is to prohibit all the civil officers of the United States, under penalty of fine and imprisonment, from employing any adequate civil force for this purpose at the place where their enforcement is most necessary, namely, at the places where the Congressional elections are held. Among the most valuable enactments to which I have referred are those which protect the supervisors of Federal elections in the discharge of their duties at the polls. If the proposed legislation should become the law, there will be no power vested in any officer of the Government to protect from violence the officers of the United States engaged in the discharge of their duties. Their rights and duties under the law will remain, but the National Government will be powerless to enforce its own statutes. The States may employ both military and civil power to keep the peace and to enforce the laws at State elections. It is now proposed to deny to the United States even the necessary civil authority to protect the national elections. No sufficient reason has been given for this discrimination in favor of the State and against the national authority. If well-founded objections exist against the present national election laws, all good citizens should unite in their amendment. The laws providing the safeguards of the elections should be impartial, just, and efficient. They should, if possible, be so nonpartisan and fair in their operation that the minority–the party out of power–will have no just grounds to complain. The present laws have in practice unquestionably conduced to the prevention of fraud and violence at the elections. In several of the States members of different political parties have applied for the safeguards which they furnish. It is the right and duty of the National Government to enact and enforce laws which will secure free and fair Congressional elections. The laws now in force should not be repealed except in connection with the enactment of measures which will better accomplish that important end. Believing that section 6 of the bill before me will weaken, if it does not altogether take away, the power of the National Government to protect the Federal elections by the civil authorities, I am forced to the conclusion that it ought not to receive my approval.
This section is, however, not presented to me as a separate and independent measure, but is, as has been stated, attached to the bill making the usual annual appropriations for the support of the Army. It makes a vital change in the election laws of the country, which is in no way connected with the use of the Army. It prohibits, under heavy penalties, any person engaged in the civil service of the United States from having any force at the place of any election, prepared to preserve order, to make arrests, to keep the peace, or in any manner to enforce the laws. This is altogether foreign to the purpose of an Army appropriation bill. The practice of tacking to appropriation bills measures not pertinent to such bills did not prevail until more than forty years after the adoption of the Constitution. It has become a common practice. All parties when in power have adopted it. Many abuses and great waste of public money have in this way crept into appropriation bills. The public opinion of the country is against it. The States which have recently adopted constitutions have generally provided a remedy for the evil by enacting that no law shall contain more than one subject, which shall be plainly expressed in its title. The constitutions of more than half of the States contain substantially this provision. The public welfare will be promoted in many ways by a return to the early practice of the Government and to the true principle of legislation, which requires that every measure shall stand or fall according to its own merits. If it were understood that to attach to an appropriation bill a measure irrelevant to the general object of the bill would imperil and probably prevent its final passage and approval, a valuable reform in the parliamentary practice of Congress would be accomplished. The best justification that has been offered for attaching irrelevant riders to appropriation bills is that it is done for convenience sake, to facilitate the passage of measures which are deemed expedient by all the branches of Government which participate in legislation. It can not be claimed that there is any such reason for attaching this amendment of the election laws to the Army appropriation bill. The history of the measure contradicts this assumption. A majority of the House of Representatives in the last Congress was in favor of section 6 of this bill. It was known that a majority of the Senate was opposed to it, and that as a separate measure it could not be adopted. It was attached to the Army appropriation bill to compel the Senate to assent to it. It was plainly announced to the Senate that the Army appropriation bill would not be allowed to pass unless the proposed amendments of the election laws were adopted with it. The Senate refused to assent to the bill on account of this irrelevant section. Congress thereupon adjourned without passing an appropriation bill for the Army, and the present extra session of the Forty-sixth Congress became necessary to furnish the means to carry on the Government.
The ground upon which the action of the House of Representatives is defended has been distinctly stated by many of its advocates. A week before the close of the last session of Congress the doctrine in question was stated by one of its ablest defenders as follows:
It is our duty to repeal these laws. It is not worth while to attempt the repeal except upon an appropriation bill. The Republican Senate would not agree to nor the Republican President sign a bill for such repeal. Whatever objection to legislation upon appropriation bills may be made in ordinary cases does not apply where free elections and the liberty of the citizens are concerned. * * * We have the power to vote money; let us annex conditions to it, and insist upon the redress of grievances.
By another distinguished member of the House it was said:
The right of the Representatives of the people to withhold supplies is as old as English liberty. History records numerous instances where the Commons, feeling that the people were oppressed by laws that the Lords would not consent to repeal by the ordinary methods of legislation, obtained redress at last by refusing appropriations unless accompanied by relief measures.
That a question of the gravest magnitude, and new in this country, was raised by this course of proceeding, was fully recognized also by its defenders in the Senate. It was said by a distinguished Senator:
Perhaps no greater question, in the form we are brought to consider it, was ever considered by the American Congress in time of peace; for it involves not merely the merits or demerits of the laws which the House bill proposes to repeal, but involves the rights, the privileges, the powers, the duties of the two branches of Congress and of the President of the United States. It is a vast question; it is a question whose importance can scarcely be estimated; it is a question that never yet has been brought so sharply before the American Congress and the American people as it may be now. It is a question which sooner or later must be decided, and the decision must determine what are the powers of the House of Representatives under the Constitution, and what is the duty of that House in the view of the framers of that Constitution, according to its letter and its spirit.
Mr. President, I should approach this question, if I were in the best possible condition to speak and to argue it, with very grave diffidence, and certainly with the utmost anxiety; for no one can think of it as long and as carefully as I have thought of it without seeing that we are at the beginning, perhaps, of a struggle that may last as long in this country as a similar struggle lasted in what we are accustomed to call the mother land. There the struggle lasted for two centuries before it was ultimately decided. It is not likely to last so long here, but it may last until every man in this chamber is in his grave. It is the question whether or no the House of Representatives has a right to say, “We will grant supplies only upon condition that grievances are redressed. We are the representatives of the taxpayers of the Republic. We, the House of Representatives, alone have the right to originate money bills. We, the House of Representatives, have alone the right to originate bills which grant the money of the people. The Senate represents States; we represent the taxpayers of the Republic. We, therefore, by the very terms of the Constitution, are charged with the duty of originating the bills which grant the money of the people. We claim the right, which the House of Commons in England established after two centuries of contest, to say that we will not grant the money of the people unless there is a redress of grievances.”
Upon the assembling of this Congress, in pursuance of a call for an extra session, which was made necessary by the failure of the Forty-fifth Congress to make the needful appropriations for the support of the Government, the question was presented whether the attempt made in the last Congress to ingraft by construction a new principle upon the Constitution should be persisted in or not. This Congress has ample opportunity and time to pass the appropriation bills, and also to enact any political measures which may be determined upon in separate bills by the usual and orderly methods of proceeding. But the majority of both Houses have deemed it wise to adhere to the principles asserted and maintained in the last Congress by the majority of the House of Representatives. That principle is that the House of Representatives has the sole right to originate bills for raising revenue, and therefore has the right to withhold appropriations upon which the existence of the Government may depend unless the Senate and the President shall give their assent to any legislation which the House may see fit to attach to appropriation bills. To establish this principle is to make a radical, dangerous, and unconstitutional change in the character of our institutions. The various departments of the Government and the Army and the Navy are established by the Constitution or by laws passed in pursuance thereof. Their duties are clearly defined and their support is carefully provided for by law. The money required for this purpose has been collected from the people and is now in the Treasury, ready to be paid out as soon as the appropriation bills are passed. Whether appropriations are made or not, the collection of the taxes will go on. The public money will accumulate in the Treasury. It was not the intention of the framers of the Constitution that any single branch of the Government should have the power to dictate conditions upon which this treasure should be applied to the purpose for which it was collected. Any such intention, if it had been entertained, would have been plainly expressed in the Constitution.
That a majority of the Senate now concurs in the claim of the House adds to the gravity of the situation, but does not alter the question at issue. The new doctrine, if maintained, will result in a consolidation of unchecked and despotic power in the House of Representatives. A bare majority of the House will become the Government. The Executive will no longer be what the framers of the Constitution intended–an equal and independent branch of the Government. It is clearly the constitutional duty of the President to exercise his discretion and judgment upon all bills presented to him without constraint or duress from any other branch of the Government. To say that a majority of either or both of the Houses of Congress may insist upon the approval of a bill under the penalty of stopping all of the operations of the Government for want of the necessary supplies is to deny to the Executive that share of the legislative power which is plainly conferred by the second section of the seventh article of the Constitution. It strikes from the Constitution the qualified negative of the President. It is said that this should be done because it is the peculiar function of the House of Representatives to represent the will of the people. But no single branch or department of the Government has exclusive authority to speak for the American people. The most authentic and solemn expression of their will is contained in the Constitution of the United States. By that Constitution they have ordained and established a Government whose powers are distributed among coordinate branches, which, as far as possible consistently with a harmonious cooperation, are absolutely independent of each other. The people of this country are unwilling to see the supremacy of the Constitution replaced by the omnipotence of any one department of the Government.
The enactment of this bill into a law will establish a precedent which will tend to destroy the equal independence of the several branches of the Government. Its principle places not merely the Senate and the Executive, but the judiciary also, under the coercive dictation of the House. The House alone will be the judge of what constitutes a grievance, and also of the means and measure of redress. An act of Congress to protect elections is now the grievance complained of; but the House may on the same principle determine that any other act of Congress, a treaty made by the President with the advice and consent of the Senate, a nomination or appointment to office, or that a decision or opinion of the Supreme Court is a grievance, and that the measure of redress is to withhold the appropriations required for the support of the offending branch of the Government.
Believing that this bill is a dangerous violation of the spirit and meaning of the Constitution, I am compelled to return it to the House in which it originated without my approval. The qualified negative with which the Constitution invests the President is a trust that involves a duty which he can not decline to perform. With a firm and conscientious purpose to do what I can to preserve unimpaired the constitutional powers and equal independence, not merely of the Executive, but of every branch of the Government, which will be imperiled by the adoption of the principle of this bill, I desire earnestly to urge upon the House of Representatives a return to the wise and wholesome usage of the earlier days of the Republic, which excluded from appropriation bills all irrelevant legislation. By this course you will inaugurate an important reform in the method of Congressional legislation; your action will be in harmony with the fundamental principles of the Constitution and the patriotic sentiment of nationality which is their firm support, and you will restore to the country that feeling of confidence and security and the repose which are so essential to the prosperity of all of our fellow-citizens.
RUTHERFORD B. HAYES.
_To the House of Representatives_:
After a careful consideration of the bill entitled “An act to prohibit military interference at elections,” I return it to the House of Representatives, in which it originated, with the following objections to its approval:
In the communication sent to the House of Representatives on the 29th of last month, returning to the House without my approval the bill entitled “An act making appropriations for the support of the Army for the fiscal year ending June 30, 1880, and for other purposes,” I endeavored to show, by quotations from the statutes of the United States now in force and by a brief statement of facts in regard to recent elections in the several States, that no additional legislation was necessary to prevent interference with the elections by the military or naval forces of the United States. The fact was presented in that communication that at the time of the passage of the act of June 18, 1878, in relation to the employment of the Army as a _posse comitatus_ or otherwise, it was maintained by its friends that it would establish a vital and fundamental principle which would secure, to the people protection against a standing army. The fact was also referred to that since the passage of this act Congressional, State, and municipal elections have been held throughout the Union, and that in no instance has complaint been made of the presence of United States soldiers at the polls.
Holding, as I do, the opinion that any military interference whatever at the polls is contrary to the spirit of our institutions and would tend to destroy the freedom of elections, and sincerely desiring to concur with Congress in all of its measures, it is with very great regret that I am forced to the conclusion that the bill before me is not only unnecessary to prevent such interference, but is a dangerous departure from long-settled and important constitutional principles.
The true rule as to the employment of military force at the elections is not doubtful. No intimidation or coercion should be allowed to control or influence citizens in the exercise of their right to vote, whether it appears in the shape of combinations of evil-disposed persons, or of armed bodies of the militia of a State, or of the military force of the United States.
The elections should be free from all forcible interference, and, as far as practicable, from all apprehensions of such interference. No soldiers, either of the Union or of the State militia, should be present at the polls to take the place or to perform the duties of the ordinary civil police force. There has been and will be no violation of this rule under orders from me during this Administration; but there should be no denial of the right of the National Government to employ its military force on any day and at any place in case such employment is necessary to enforce the Constitution and laws of the United States.
The bill before me is as follows:
_Be it enacted, etc._, That it shall not be lawful to bring to or employ at any place where a general or special election is being held in a State any part of the Army or Navy of the United States, unless such force be necessary to repel the armed enemies of the United States or to enforce section 4, Article IV, of the Constitution of the United States and the laws made in pursuance thereof, on application of the legislature or executive of the State where such force is to be used; and so much of all laws as is inconsistent herewith is hereby repealed.
It will be observed that the bill exempts from the general prohibition against the employment of military force at the polls two specified cases. These exceptions recognize and concede the soundness of the principle that military force may properly and constitutionally be used at the place of elections when such use is necessary to enforce the Constitution and the laws; but the excepted cases leave the prohibition so extensive and far-reaching that its adoption will seriously impair the efficiency of the executive department of the Government.
The first act expressly authorizing the use of military power to execute the laws was passed almost as early as the organization of the Government under the Constitution, and was approved by President Washington May 2, 1792. It is as follows:
SEC. 2. _And be it further enacted_, That whenever the laws of the United States shall be opposed or the execution thereof obstructed in any State by combinations too powerful to be suppressed by the ordinary course of judicial proceedings or by the powers vested in the marshals by this act, the same being notified to the President of the United States by an associate justice or the district judge, it shall be lawful for the President of the United States to call forth the militia of such State to suppress such combinations and to cause the laws to be duly executed. And if the militia of a State where such combination may happen shall refuse or be insufficient to suppress the same, it shall be lawful for the President, if the Legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other State or States most convenient thereto as may be necessary; and the use of militia so to be called forth may be continued, if necessary, until the expiration of thirty days after the commencement of the ensuing session.
In 1795 this provision was substantially reenacted in a law which repealed the act of 1792. In 1807 the following act became the law by the approval of President Jefferson:
That in all cases of insurrection or obstruction to the laws, either of the United States or of any individual State or Territory, where it is lawful for the President of the United States to call forth the militia for the purpose of suppressing such insurrection or of causing the laws to be duly executed, it shall be lawful for him to employ for the same purposes such part of the land or naval force of the United States as shall be judged necessary, having first observed all the prerequisites of the law in that respect.
By this act it will be seen that the scope of the law of 1795 was extended so as to authorize the National Government to use not only the militia, but the Army and Navy of the United States, in “causing the laws to be duly executed.”
The important provision of the acts of 1792, 1795, and 1807, modified in its terms from time to time to adapt it to the existing emergency, remained in force until, by an act approved by President Lincoln July 29, 1861, it was reenacted substantially in the same language in which it is now found in the Revised Statutes, viz:
SEC. 5298. Whenever, by reason of unlawful obstructions, combinations, or assemblages of persons, or rebellion against the authority of the Government of the United States, it shall become impracticable, in the judgment of the President, to enforce by the ordinary course of judicial proceedings the laws of the United States within any State or Territory, it shall be lawful for the President to call forth the militia of any or all the States and to employ such parts of the land and naval forces of the United States as he may deem necessary to enforce the faithful execution of the laws of the United States or to suppress such rebellion, in whatever State or Territory thereof the laws of the United States may be forcibly opposed or the execution thereof forcibly obstructed.
This ancient and fundamental law has been in force from the foundation of the Government. It is now proposed to abrogate it on certain days and at certain places. In my judgment no fact has been produced which tends to show that it ought to be repealed or suspended for a single hour at any place in any of the States or Territories of the Union. All the teachings of experience in the course of our history are in favor of sustaining its efficiency unimpaired. On every occasion when the supremacy of the Constitution has been resisted and the perpetuity of our institutions imperiled the principle of this statute, enacted by the fathers, has enabled the Government of the Union to maintain its authority and to preserve the integrity of the nation.
At the most critical periods of our history my predecessors in the executive office have relied on this great principle. It was on this principle that President Washington suppressed the whisky rebellion in Pennsylvania in 1794.
In 1806, on the same principle, President Jefferson broke up the Burr conspiracy by issuing “orders for the employment of such force, either of the regulars or of the militia, and by such proceedings of the civil authorities, * * * as might enable them to suppress effectually the further progress of the enterprise.” And it was under the same authority that President Jackson crushed nullification in South Carolina and that President Lincoln issued his call for troops to save the Union in 1861. On numerous other occasions of less significance, under probably every Administration, and certainly under the present, this power has been usefully exerted to enforce the laws, without objection by any party in the country, and almost without attracting public attention.
The great elementary constitutional principle which was the foundation of the original statute of 1792, and which has been its essence in the various forms it has assumed since its first adoption, is that the Government of the United States possesses under the Constitution, in full measure, the power of self-protection by its own agencies, altogether independent of State authority, and, if need be, against the hostility of State governments. It should remain embodied in our statutes unimpaired, as it has been from the very origin of the Government. It should be regarded as hardly less valuable or less sacred than a provision of the Constitution itself.
There are many other important statutes containing provisions that are liable to be suspended or annulled at the times and places of holding elections if the bill before me should become a law. I do not undertake to furnish a list of them. Many of them–perhaps the most of them–have been set forth in the debates on this measure. They relate to extradition, to crimes against the election laws, to quarantine regulations, to neutrality, to Indian reservations, to the civil rights of citizens, and to other subjects. In regard to them all it may be safely said that the meaning and effect of this bill is to take from the General Government an important part of its power to enforce the laws.
Another grave objection to the bill is its discrimination in favor of the State and against the national authority. The presence or employment of the Army or Navy of the United States is lawful under the terms of this bill at the place where an election is being held in a State to uphold the authority of a State government then and there in need of such military intervention, but unlawful to uphold the authority of the Government of the United States then and there in need of such military intervention. Under this bill the presence or employment of the Army or Navy of the United States would be lawful and might be necessary to maintain the conduct of a State election against the domestic violence that would overthrow it, but would be unlawful to maintain the conduct of a national election against the same local violence that would overthrow it. This discrimination has never been attempted in any previous legislation by Congress, and is no more compatible with sound principles of the Constitution or the necessary maxims and methods of our system of government on occasions of elections than at other times. In the early legislation of 1792 and of 1795, by which the militia of the States was the only military power resorted to for the execution of the constitutional powers in support of State or national authority, both functions of the Government were put upon the same footing. By the act of 1807 the employment of the Army and Navy was authorized for the performance of both constitutional duties in the same terms.
In all later statutes on the same subject-matter the same measure of authority to the Government has been accorded for the performance of both these duties. No precedent has been found in any previous legislation, and no sufficient reason has been given for the discrimination in favor of the State and against the national authority which this bill contains.
Under the sweeping terms of the bill the National Government is effectually shut out from the exercise of the right and from the discharge of the imperative duty to use its whole executive power whenever and wherever required for the enforcement of its laws at the places and times when and where its elections are held. The employment of its organized armed forces for any such purpose would be an offense against the law unless called for by, and therefore upon permission of, the authorities of the State in which the occasion arises. What is this but the substitution of the discretion of the State governments for the discretion of the Government of the United States as to the performance of its own duties? In my judgment this is an abandonment of its obligations by the National Government–a subordination of national authority and an intrusion of State supervision over national duties which amounts, in spirit and tendency, to State supremacy.
Though I believe that the existing statutes are abundantly adequate to completely prevent military interference with the elections in the sense in which the phrase is used in the title of this bill and is employed by the people of this country, I shall find no difficulty in concurring in any additional legislation limited to that object which does not interfere with the indispensable exercise of the powers of the Government under the Constitution and laws.
R.B. HAYES.
MAY 12, 1879.
EXECUTIVE MANSION, _May 29, 1879_.
_To the House of Representatives_:
After mature consideration of the bill entitled “An act making appropriations for the legislative, executive, and judicial expenses of the Government for the fiscal year ending June 30, 1880, and for other purposes,” I herewith return it to the House of Representatives, in which it originated, with the following objections to its approval:
The main purpose of the bill is to appropriate the money required to support during the next fiscal year the several civil departments of the Government. The amount appropriated exceeds in the aggregate $18,000,000.
This money is needed to keep in operation the essential functions of all the great departments of the Government–legislative, executive, and judicial. If the bill contained no other provisions, no objection to its approval would be made. It embraces, however, a number of clauses, relating to subjects of great general interest, which are wholly unconnected with the appropriations which it provides for. The objections to the practice of tacking general legislation to appropriation bills, especially when the object is to deprive a coordinate branch of the Government of its right to the free exercise of its own discretion and judgment touching such general legislation, were set forth in the special message in relation to House bill No. 1, which was returned to the House of Representatives on the 29th of last month. I regret that the objections which were then expressed to this method of legislation have not seemed to Congress of sufficient weight to dissuade from this renewed incorporation of general enactments in an appropriation bill, and that my constitutional duty in respect of the general legislation thus placed before me can not be discharged without seeming to delay, however briefly, the necessary appropriations by Congress for the support of the Government. Without repeating these objections, I respectfully refer to that message for a statement of my views on the principle maintained in debate by the advocates of this bill, viz, that “to withhold appropriations is a constitutional means for the redress” of what the majority of the House of Representatives may regard as “a grievance.”
The bill contains the following clauses, viz:
_And provided further_, That the following sections of the Revised Statutes of the United States, namely, sections 2016, 2018, and 2020, and all of the succeeding sections of said statutes down to and including section 2027, and also section 5522, be, and the same are hereby, repealed; * * * and that all the other sections of the Revised Statutes, and all laws and parts of laws authorizing the appointment of chief supervisors of elections, special deputy marshals of elections, or general deputy marshals having any duties to perform in respect to any election, and prescribing their duties and powers and allowing them compensation, be, and the same are hereby, repealed.
It also contains clauses amending sections 2017, 2019, 2028, and 2031 of the Revised Statutes.
The sections of the Revised Statutes which the bill, if approved, would repeal or amend are part of an act approved May 30, 1870, and amended February 28, 1871, entitled “An act to enforce the rights of citizens of the United States to vote in the several States of this Union, and for other purposes.” All of the provisions of the above-named acts which it is proposed in this bill to repeal or modify relate to the Congressional elections. The remaining portion of the law, which will continue in force after the enactment of this measure, is that which provides for the appointment, by a judge of the circuit court of the United States, of two supervisors of election in each election district at any Congressional election, on due application of citizens who desire, in the language of the law, “to have such election _guarded_ and _scrutinized_.” The duties of the supervisors will be to attend at the polls at all Congressional elections, and to remain after the polls are open until every vote cast has been counted; but they will “have no authority to make arrests or to perform other duties than to be in the immediate presence of the officers holding the election and to witness all their proceedings, including the counting of the votes and the making of a return thereof.” The part of the election law which will be repealed by the approval of this bill includes those sections which give authority to the supervisors of elections “to personally scrutinize, count, and canvass each ballot,” and all the sections which confer authority upon the United States marshals and deputy marshals in connection with the Congressional elections. The enactment of this bill will also repeal section 5522 of the criminal statutes of the United States, which was enacted for the protection of United States officers engaged in the discharge of their duties at the Congressional elections. This section protects supervisors and marshals in the performance of their duties by making the obstruction or the assaulting of these officers, or any interference with them, by bribery or solicitation or otherwise, crimes against the United States.
The true meaning and effect of the proposed legislation are plain. The supervisors, with the authority to observe and witness the proceedings at the Congressional elections, will be left, but there will be no power to protect them, or to prevent interference with their duties, or to punish any violation of the law from which their powers are derived. If this bill is approved, only the shadow of the authority of the United States at the national elections will remain; the substance will be gone. The supervision of the elections will be reduced to a mere inspection, without authority on the part of the supervisors to do any act whatever to make the election a fair one. All that will be left to the supervisors is the permission to have such oversight of the elections as political parties are in the habit of exercising without any authority of law, in order to prevent their opponents from obtaining unfair advantages. The object of the bill is to destroy any control whatever by the United States over the Congressional elections.
The passage of this bill has been urged upon the ground that the election of members of Congress is a matter which concerns the States alone; that these elections should be controlled exclusively by the States; that there are and can be no such elections as national elections, and that the existing law of the United States regulating the Congressional elections is without warrant in the Constitution.
It is evident, however, that the framers of the Constitution regarded the election of members of Congress in every State and in every district as in a very important sense justly a matter of political interest and concern to the whole country. The original provision of the Constitution on this subject is as follows (sec. 4, Art. I):
The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing Senators.
A further provision has been since added, which is embraced in the fifteenth amendment. It is as follows:
SEC. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
SEC. 2. The Congress shall have power to enforce this article by appropriate legislation.
Under the general provision of the Constitution (sec. 4, Art. I) Congress in 1866 passed a comprehensive law which prescribed full and detailed regulations for the election of Senators by the legislatures of the several States. This law has been in force almost thirteen years. In pursuance of it all the members of the present Senate of the United States hold their seats. Its constitutionality is not called in question. It is confidently believed that no sound argument can be made in support of the constitutionality of national regulation of Senatorial elections which will not show that the elections of members of the House of Representatives may also be constitutionally regulated by the national authority.
The bill before me itself recognizes the principle that the Congressional elections are not State elections, but national elections. It leaves in full force the existing statute under which supervisors are still to be appointed by national authority to “observe and witness” the Congressional elections whenever due application is made by citizens who desire said elections to be “guarded and scrutinized.” If the power to supervise in any respect whatever the Congressional elections exists under section 4, Article I, of the Constitution, it is a power which, like every other power belonging to the Government of the United States, is paramount and supreme, and includes the right to employ the necessary means to carry it into effect.
The statutes of the United States which regulate the election of members of the House of Representatives, an essential part of which it is proposed to repeal by this bill, have been in force about eight years. Four Congressional elections have been held under them, two of which were at the Presidential elections of 1872 and 1876. Numerous prosecutions, trials, and convictions have been had in the courts of the United States in all parts of the Union for violations of these laws. In no reported case has their constitutionality been called in question by any judge of the courts of the United States. The validity of these laws is sustained by the uniform course of judicial action and opinion.
If it is urged that the United States election laws are not necessary, an ample reply is furnished by the history of their origin and of their results. They were especially prompted by the investigation and exposure of the frauds committed in the city and State of New York at the elections of 1868. Committees representing both of the leading political parties of the country have submitted reports to the House of Representatives on the extent of those frauds. A committee of the Fortieth Congress, after a full investigation, reached the conclusion that the number of fraudulent votes cast in the city of New York alone in 1868 was not less than 25,000. A committee of the Forty-fourth Congress in their report, submitted in 1877, adopted the opinion that for every 100 actual voters of the city of New York in 1868 108 votes were cast, when in fact the number of lawful votes cast could not have exceeded 88 per cent of the actual voters of the city. By this statement the number of fraudulent votes at that election in the city of New York alone was between thirty and forty thousand. These frauds completely reversed the result of the election in the State of New York, both as to the choice of governor and State officers and as to the choice of electors of President and Vice-President of the United States. They attracted the attention of the whole country. It was plain that if they could be continued and repeated with impunity free government was impossible. A distinguished Senator, in opposing the passage of the election laws, declared that he had “for a long time believed that our form of government was a comparative failure in the larger cities.” To meet these evils and to prevent these crimes the United States laws regulating Congressional elections were enacted.
The framers of these laws have not been disappointed in their results. In the large cities, under their provisions, the elections have been comparatively peaceable, orderly, and honest. Even the opponents of these laws have borne testimony to their value and efficiency and to the necessity for their enactment. The committee of the Forty-fourth Congress, composed of members a majority of whom were opposed to these laws, in their report on the New York election of 1876, said:
The committee would commend to other portions of the country and to other cities this remarkable system, developed through the agency of both local and Federal authorities acting in harmony for an honest purpose. In no portion of the world and in no era of time where there has been an expression of the popular will through the forms of law has there been a more complete and thorough illustration of republican institutions. Whatever may have been the previous habit or conduct of elections in those cities, or howsoever they may conduct themselves in the future, this election of 1876 will stand as a monument of what good faith, honest endeavor, legal forms, and just authority may do for the protection of the electoral franchise.
This bill recognizes the authority and duty of the United States to appoint supervisors to guard and scrutinize the Congressional elections, but it denies to the Government of the United States all power to make its supervision effectual. The great body of the people of all parties want free and fair elections. They do not think that a free election means freedom from the wholesome restraints of law or that the place of election should be a sanctuary for lawlessness and crime. On the day of an election peace and good order are more necessary than on any other day of the year. On that day the humblest and feeblest citizens, the aged and the infirm, should be, and should have reason to feel that they are, safe in the exercise of their most responsible duty and their most sacred right as members of society–their duty and their right to vote. The constitutional authority to regulate the Congressional elections which belongs to the Government of the United States, and which it is necessary to exert to secure the right to vote to every citizen possessing the requisite qualifications, ought to be enforced by appropriate legislation. So far from public opinion in any part of the country favoring any relaxation of the authority of the Government in the protection of elections from violence and corruption, I believe it demands greater vigor both in the enactment and in the execution of the laws framed for that purpose. Any oppression, any partisan partiality, which experience may have shown in the working of existing laws may well engage the careful attention both of Congress and of the Executive, in their respective spheres of duty, for the correction of these mischiefs. As no Congressional elections occur until after the regular session of Congress will have been held, there seems to be no public exigency that would preclude a seasonable consideration at that session of any administrative details that might improve the present methods designed for the protection of all citizens in the complete and equal exercise of the right and power of the suffrage at such elections. But with my views, both of the constitutionality and of the value of the existing laws, I can not approve any measure for their repeal except in connection with the enactment of other legislation which may reasonably be expected to afford wiser and more efficient safeguards for free and honest Congressional elections.
RUTHERFORD B. HAYES.
EXECUTIVE MANSION, _June 23, 1879_.
_To the House of Representatives_:
After careful examination of the bill entitled “An act making appropriations for certain judicial expenses,” I return it herewith to the House of Representatives, in which it originated, with the following objections to its approval:
The general purpose of the bill is to provide for certain judicial expenses of the Government for the fiscal year ending June 30, 1880, for which the sum of $2,690,000 is appropriated. These appropriations are required to keep in operation the general functions of the judicial department of the Government, and if this part of the bill stood alone there would be no objection to its approval. It contains, however, other provisions, to which I desire respectfully to ask your attention.
At the present session of Congress a majority of both Houses, favoring a repeal of the Congressional election laws embraced in title 26 of the Revised Statutes, passed a measure for that purpose, as part of a bill entitled “An act making appropriations for the legislative, executive, and judicial expenses of the Government for the fiscal year ending June 30, 1880, and for other purposes.” Unable to concur with Congress in that measure, on the 29th of May last I returned the bill to the House of Representatives, in which it originated, without my approval, for that further consideration for which the Constitution provides. On reconsideration the bill was approved by less than two-thirds of the House, and failed to become a law. The election laws therefore remain valid enactments, and the supreme law of the land, binding not only upon all private citizens, but also alike and equally binding upon all who are charged with the duties and responsibilities of the legislative, the executive, and the judicial departments of the Government.
It is not sought by the bill before me to repeal the election laws. Its object is to defeat their enforcement. The last clause of the first section is as follows:
And no part of the money hereby appropriated is appropriated to pay any salaries, compensation, fees, or expenses under or in virtue of title 26 of the Revised Statutes, or of any provision of said title.
Title 26 of the Revised Statutes, referred to in the foregoing clause, relates to the elective franchise, and contains the laws now in force regulating the Congressional elections.
The second section of the bill reaches much further. It is as follows:
SEC. 2. That the sums appropriated in this act for the persons and public service embraced in its provisions are in full for such persons and public service for the fiscal year ending June 30, 1880; and no Department or officer of the Government shall during said fiscal year make any contract or incur any liability for the future payment of money under any of the provisions of title 26 of the Revised Statutes of the United States authorizing the appointment or payment of general or special deputy marshals for service in connection with elections or on election day until an appropriation sufficient to meet such contract or pay such liability shall have first been made by law.
This section of the bill is intended to make an extensive and essential change in the existing laws. The following are the provisions of the statutes on the same subject which are now in force:
SEC. 3679. No Department of the Government shall expend in any