Veto Message

To the Senate of the United States:

After mature consideration of the bill entitled "An act regulating the pay and appointment of deputy marshals," I am constrained to withhold from it my approval, and to return it to the Senate, in which it originated, with my objections to its passage.

The laws now in force on the subject of the bill before me are contained in the following sections of the Revised Statutes:

Sec. 2021. Whenever an election at which Representatives or Delegates in Congress are to be chosen is held in any city or town of 20,000 inhabitants or upward, the marshal for the district in which the city or town is situated shall, on the application in writing of at least two citizens residing in such city or town, appoint special deputy marshals, whose duty it shall be, when required thereto, to aid and assist the supervisors of election in the verification of any list of persons who may have registered or voted; to attend in each election district or voting precinct at the times and places fixed for the registration of voters, and at all times or places when and where the registration may by law be scrutinized and the names of registered voters be marked for challenge; and also to attend, at all times for holding elections, the polls in such district or precinct.

SEC. 2022. The marshal and his general deputies, and such special deputies, shall keep the peace and support and protect the supervisors of election in the discharge of their duties, preserve order at such places of registration and at such polls, prevent fraudulent registration and fraudulent voting thereat, or fraudulent conduct on the part of any officer of election, and immediately, either at the place of registration or polling place, or elsewhere, and either before or after registering or voting, to arrest and take into custody, with or without process, any person who Commits, or attempts or offers to commit, any of the acts or offenses prohibited herein, or who commits any offense against the laws of the United States; but no person shall be arrested without process for any offense not committed in the presence of the marshal or his general or special deputies, or either of them, or of the supervisors of election, or either of them; and for the purposes of arrest or the preservation of the peace the supervisors of election shall, in the absence of the marshal's deputies, or if required to assist such deputies, have the same duties and powers as deputy marshals; nor shall any person, on the day of such election, be arrested without process for any offense committed on the day of registration.

SEC. 2023. Whenever any arrest is made under any provision of this title, the person so arrested shall forthwith be brought before a commissioner, judge, or court of the United States for examination of the offenses alleged against him; and such commissioner, judge, or court shall proceed in respect thereto as authorized by law in case of crimes against the United States.

SEC. 2024. The marshal or his general deputies, or such special deputies as are thereto specially empowered by him in writing, and under his hand and seal, whenever he or either or any of them is forcibly resisted in executing their duties under this title, or shall by violence, threats, or menaces be prevented from executing such duties or from arresting any person who has committed any offense for which the marshal or his general or his special deputies are authorized to make such arrest, are, and each of them is, empowered to summon and call to his aid the bystanders or posse comitatus of his district.

SEC. 2028. No person shall be appointed a supervisor of election or a deputy marshal under the preceding provisions who is not at the time of his appointment a qualified voter of the city, town, county, parish, election district, or voting precinct in which his duties are to be performed.

SEC. 5521. If any person be appointed a supervisor of election or a special deputy marshal under the provisions of title "The elective franchise," and has taken the oath of office as such supervisor of election or such special deputy marshal, and thereafter neglects or refuses, without good and lawful excuse, to perform and discharge fully the duties, obligations, and requirements of such office until the expiration of the term for which he was appointed, he shall not only be subject to removal from office with loss of all pay or emoluments, but shall be punished by imprisonment for not less than six months nor more than one year, or by a fine of not less than $200 and not more than $500, or by both fine and imprisonment, and shall pay the costs of prosecution.

Sec. 5522. Every person, whether with or without any authority, power, or process, or pretended authority, power, or process, of any State, Territory, or municipality, who obstructs, hinders, assaults, or by bribery, solicitation, or otherwise interferes with or prevents the supervisors of election, or either of them, or the marshal of his general or special deputies, or either of them, in the performance of any duty required of them, or either of them, or which he or they, or either of them, may be authorized to perform by any law of the United States, in the execution of process or otherwise, or who by any of the means before mentioned hinders or prevents the free attendance and presence at such places of registration, or at such polls of election, or full and free access and egress to and from any such place of registration or poll of election, or in going to and from any such place of registration or poll of election, or to and from any room where any such registration or election or canvass of votes, or of making any returns or certificates thereof, may be had, or who molests, interferes with, removes, or ejects from any such place of registration or poll of election, or of canvassing votes cast thereat, or of making returns or certificates thereof, any supervisor of election, the marshal or his general or special deputies, or either of them, or who threatens, or attempts or offers so to do, or refuses or neglects to aid and assist any supervisor of election, or the marshal or his general or special deputies, or either of them, in the performance of his or their duties, when required by him or them, or either of them, to give such aid and assistance, shall be liable to instant arrest without process, and shall be punished by imprisonment not more than two years, or by a fine of not more than $3,000, or by both such fine and imprisonment, and shall pay the cost of the prosecution.

The Supreme Court of the United States, in the recent case of Ex parte Siebold and others, decided at the October term, 1879, on the question raised in the case as to the constitutionality of the sections of the Revised Statutes above quoted, uses the following language:

These portions of the Revised Statutes are taken from the act commonly known as the enforcement act, approved May 31, 1870, and entitled "An act to enforce the right of citizens of the United States to vote in the several States of this Union, and for other purposes," and from the supplement to that act, approved February 28, 1871. They relate to elections of members of the House of Representatives, and were an assertion on the part of Congress of a power to pass laws for regulating and superintending said elections and for securing the purity thereof and the rights of citizens to vote thereat peaceably and without molestation.

It must be conceded to be a most important power, and of a fundamental character. In the light of recent history and of the violence, fraud, corruption, and irregularity which have frequently prevailed at such elections, it may easily be conceived that the exertion of the power, if it exists, may be necessary to the stability of our form of government.

The greatest difficulty in coming to a just conclusion arises from mistaken notions with regard to the relations which subsist between the State and National Governments. * * *

It seems to be often overlooked that a national constitution has been adopted in this country, establishing a real government therein, operating upon persons and territory and things, and which, moreover, is, or should be, as dear to every American citizen as his State government is. Whenever the true conception of the nature of this Government is once conceded, no real difficulty will arise in the just interpretation of its powers; but if we allow ourselves to regard it as a hostile organization, opposed to the proper sovereignty and dignity of the State governments, we shall continue to be vexed with difficulties as to its jurisdiction and authority. No greater jealousy is required to be exercised toward this Government in reference to the preservation of our liberties than is proper to be exercised toward the State governments. Its powers are limited in number and clearly defined, and its action within the scope of those powers is restrained by a sufficiently rigid bill of rights for the protection of its citizens from oppression. The true interests of the people of this country require that both the National and State Governments should be allowed, without jealous interference on either side, to exercise all the powers which respectively belong to them according to a fair and practical construction of the Constitution. State rights and the rights of the United States should be equally respected. Both are essential to the preservation of our liberties and the perpetuity of our institutions. But in endeavoring to vindicate the one we should not allow our zeal to nullify or impair the other. * * *

The true doctrine, as we conceive, is this, that while the States are really sovereign as to all matters which have not been granted to the jurisdiction and control of the United States, the Constitution and constitutional laws of the latter are, as we have already said, the supreme law of the land, and when they conflict with the laws of the States they are of paramount authority and obligation. This is the fundamental principle on which the authority of the Constitution is based, and unless it be conceded in practice as well as theory the fabric of our institutions, as it was contemplated by its founders, can not stand. The questions involved have respect not more to the autonomy and existence of the States than to the continued existence of the United States as a government to which every American citizen may look for security and protection in every part of the land. * * *

Why do we have marshals at all if they can not physically lay their hands on persons and things in the performance of their proper duties? What functions can they perform if they can not use force? In executing the process of the courts must they call on the nearest constable for protection? Must they rely on him to use the requisite compulsion and to keep the peace while they are soliciting and entreating the parties and bystanders to allow the law to take its course? This is the necessary consequence of the positions that are assumed. If we indulge in such impracticable views as these, and keep on refining and re-refining, we shall drive the National Government out of the United States and relegate it to the District of Columbia, or perhaps to some foreign soil. We shall bring it back to a condition of greater helplessness than that of the old Confederation.

The argument is based on a strained and impracticable view of the nature and powers of the National Government. It must execute its powers or it is no government. It must execute them on the land as well as on the sea, on things as well as on persons. And to do this it must necessarily have power to command obedience, preserve order, and keep the peace; and no person or power in this land has the right to resist or question its authority so long as it keeps within the bounds of its jurisdiction.

I have deemed it fitting and proper to quote thus largely from an important and elaborate opinion of the Supreme Court because the bill before me proceeds upon a construction of the Constitution as to the powers of the National Government which is in direct conflict with the judgment of the highest judicial tribunal of our country.

Under the sections of the present law above quoted officers of the United States are authorized, and it is their duty in the case of Congressional elections, to keep the peace at the polls and at the places of registration; to arrest immediately any person who is guilty of crimes against the United States election laws; to protect all officers of elections in the performance of their duties; and whenever an arrest is made to bring the person so arrested before a commissioner, judge, or court of the United States for examination of the offenses alleged against him. "Such special deputy marshals as are specially empowered thereto by the marshal in writing," if forcibly resisted, may call to their aid the bystanders or posse comitatus. It is made a crime punishable with fine or imprisonment to hinder, assault, or otherwise interfere with the marshal or "his special deputies," or to threaten or to attempt so to do. If any person appointed such special deputy marshal has taken the oath of office and thereafter neglects or refuses to fully discharge the duties of such office, he is punishable not only by removal from office, but by fine and imprisonment. The functions of the special deputy marshals now provided for by law being executive, they are placed under the authority of the well-known chief executive officer of the courts of the United States. They are in fact, and not merely in name, the deputies of the marshal, and he and his bondsmen are responsible for them. A civil force for the execution of the law is thus instituted in accordance with long-established and familiar usage, which is simple, effective, and under a responsible head. The necessity for the possession of these powers by appropriate officers will not be called in question by intelligent citizens who appreciate the importance of peaceable, orderly, and lawful elections. Similar powers are conferred and exercised under State laws with respect to State elections. The executive officers of the United States under the existing laws have no other or greater power to supervise and control the conduct of the Congressional elections than the State executive officers exercise in regard to State elections.

The bill before me changes completely the present law by substituting for the special deputy marshals of the existing statutes new officers hitherto unknown to the law, and who lack the power, responsibility, and protection which are essential to enable them to act efficiently as executive officers.

The bill under consideration is as follows:

Be it enacted by the Senate and House of Representatives of the United States America in Congress assembled, That from and after the passage of this act the pay of all deputy marshals for services in reference to any election shall be $5 for each day of actual service, and no more.

Sec. 2. That all deputy marshals to serve in reference to any election shall be appointed by the circuit court of the United States for the district in which such marshals are to perform their duties in each year; and the judges of the several circuit courts of the United States are hereby authorized to open their respective courts at any time for that purpose; and in case the circuit courts shall not be open for that purpose at least ten days prior to a registration, if there be one, or, if no registration be required, then at/east ten days before such election, the judges of the district courts of the United States are hereby respectively authorized to cause their courts to be opened for the purpose of appointing such deputy marshals, who shall be appointed by the said district courts; and the officers so appointed shall be in equal numbers from the different political parties, and shall be well-known citizens, of good moral character, and actual residents of the voting precincts in which their duties are to be performed, and shall not be candidates for any office at such election; and all laws and parts of laws inconsistent with this act are hereby repealed: Provided, That the marshals of the United States for whom deputies shall be appointed by the court under this act shall not be liable for any of the acts of such deputies.

It will be observed that the deputy marshals proposed by the bill before me are distinctly different officers from the special deputies of the marshal, as such officers are now provided for in the statutes. This bill does not connect the new officers with the existing laws relating to special deputy marshals so as to invest the proposed deputy marshals with the same powers, to impose upon them the same duties, and to give them the same protection by means of the criminal laws. When new officers are created, distinct in character and appointed by different authority, although similar in name to officers already provided for, such officers are not held by similar responsibilities to the criminal law, do not possess the same powers, and are not similarly protected unless it is expressly so provided by legislation.

The so-called deputy marshals provided for in this bill will have no executive head. The marshal can neither appoint nor remove them. He can not control them, and he is not responsible for them. They will have no authority to call to their aid, if resisted, the posse comitatus. They are protected by no criminal statutes in the performance of their duties. An assault upon one of these deputies with the intent to prevent a lawful election will be no more than an ordinary assault upon any other citizen. They can not keep the peace. They can not make arrests when crimes are committed in their presence. Whatever powers they have are confined to the precincts in which they reside. Outside of the precincts for which they are appointed the deputy marshals of this bill can not keep the peace, make arrests, hold prisoners, take prisoners before a proper tribunal for hearing, nor perform any other duty. No oaths of office are required of them, and they give no bond. They have no superior who is responsible for them, and they are not punishable for neglect of duty or misconduct in office. In all these respects this bill makes a radical change between the powers of the United States officers at national elections and the powers uniformly possessed and exercised by State officers at State elections. This discrimination against the authority of the United States is a departure from the usage of the Government established by precedents beginning with the earliest statutes on the subject, and violates the true principles of the Constitution. The Supreme Court, in the decision already referred to, says:

It is argued that the preservation of peace and good order in society is not within the powers confided to the Government of the United States, but belongs exclusively to the States. Here again we are met with the theory that the Government of the United States does not rest upon the soil and territory of the country. We think that this theory is founded on an entire misconception of the nature and powers of that Government. We hold it to be an incontrovertible principle that the Government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it. This necessarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent.

This power to enforce its laws and to execute its functions in all places does not derogate from the power of the State to execute its laws at the same time and in the same places. The one does not exclude the other, except where both can not be executed at the same time. In that case the words of the Constitution itself show which is to yield. "This Constitution and all laws which shall be made in pursuance thereof * * * shall be the supreme law of the land."

In conclusion it is proper to say that no objection would be made to the appointment of officers to act with reference to the elections by the courts of the United States, and that I am in favor of appointing officers to supervise and protect the elections without regard to party; but the bill before me, while it recognizes the power and duty of the United States to provide officers to guard and scrutinize the Congressional elections, fails to adapt its provisions to the existing laws so as to secure efficient supervision and protection. It is therefore returned to the Senate, in which it originated, for that further consideration which is contemplated by the Constitution.

RUTHERFORD B. HAYES