James D. Richardson.

A Compilation of the Messages and Papers of the Presidents Volume 7, part 2: Rutherford B. Hayes online

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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repealed the act of 1792.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


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Online LibraryJames D. RichardsonA Compilation of the Messages and Papers of the Presidents Volume 7, part 2: Rutherford B. Hayes → online text (page 12 of 25)