"What order do you refer to?" I replied, "To order number 17 of the series of 1867." He said, "I would like to see the order,"and a messenger was dispatched for it. At this time a gentleman came in who I supposed had business in no way connected with the business I had in hand, and I withdrew to the farther end of the room, and while there, the messenger came in with the book of orders and handed it to me. As soon as the gentleman had withdrawn, I returned to the President with the book in my hand, and said I would take it as a favor if he would permit me to call his attention to that order; that it had been passed in an appropriation bill, and I thought it not unlikely that it had escaped his attention. He took the order and read it, and observed, "This is not in conformity with the Constitution of the United States, that makes me Commander-in-Chief, or with the terns of your commission." I replied, "That is the order which you approved and issued to the army for our government," or something to that effect. I can not recollect the exact words, nor do I intend to quote the exact words of the President. He said, "Am I to understand that the President of the United States can not give an order except through the General of the Army? Or General Grant?" I said in reply, that that was my impression--that that was the opinion that the Army entertain, and I thought upon that subject they were a unit. I also said, "Ithink it is fair, Mr. President, to say to you that when this order came out, there was considerable discussion on the subject as to what were the obligations of an officer under that order, and some eminent lawyers were consulted. I myself consulted one--and the opinion was given to me decidedly and unequivocally that we were bound by the order, Constitutional or not Constitutional. The President observed that "the object of the law was evident."The following is that portion of the act referred to:
"Section 2. Be it further enacted: That the headquarters of the General of the Army of the United States shall be at the City of Washington, and all orders and instructions relating to military operations issued by the President and Secretary of War shall be issued through the General of the Army, and in case of his inability, through the next in rank. The General of the, Army shall not be removed, suspended, or relieved from command or assigned to duty elsewhere than at said headquarters except at his own request WITHOUT THE PREVIOUS APPROVAL OF THE SENATE; and any orders or instructions relating to Military operations issued contrary to the requirements of this section, shall be null and void. And any officer who shall issue orders or instructions, contrary to the provisions of this section, shall be deemed guilty of a misdemeanor in office; and any officer of the Army who shall transmit, convey or obey any orders or instructions so issued contrary to the provisions of this section, knowing that such orders were so issued shall be liable to imprisonment for not less than two nor more than twenty years upon conviction thereof in any Court of competent jurisdiction."By turning to the Congressional Record of that day, it will be found that Mr. Johnson was perfectly aware of the existence of the foregoing provision of the Act of Congress in the bill referred to, at the time he returned the bill to the House with his signature. His reasons for so signing it are set out in the following communication to the House accompanying the billThe act entitled "An act making appropriations for the support of the Army for the year ending June 30, 1868, and for other purposes," contains provisions to which I must call attention.
There are propositions contained in the second section which in certain cases deprives the President of his Constitutional functions of Commander in Chief of the Army, and in the sixth section, which denies to ten States of the Union their Constitutional right to protect themselves in any emergency, by means of their own militia. These provisions are out of place in an appropriation act, but I am compelled to defeat these necessary appropriations if I withhold my signature from the act.
Pressed by these considerations, I feel constrained to return the bill with my signature, but to accompany it with my earnest protest against the section which I have indicated.
Andrew Johnson.
Washington, D. C., March 2, 1868.
That Congress was to expire by limitation at 12 o'clock on the 4th, thirty-six hours later. If Mr. Johnson had vetoed the bill, as under ordinary conditions it would have been his duty to the Constitution and to himself to do, its re-passage through the two Houses in that limited time would have been impossible, and the appropriations carried by the bill for the support of the Army would have been lost. To save them Mr. Johnson submitted to the indignity put upon him by Congress in denying him a guaranteed and manifest Constitutional right and power. In that act Mr.
Johnson illustrated a magnanimity and a consciousness of public responsibility that was most creditible to himself, and in marked contrast to the action of Congress toward him.
