The recent act of conscription passed by Congress, exempts from military service "the vice-president of the Confederate States, the members and officers of Congress, of the several legislatures, and such other confederate and State officers as the president or the executives of the respective States may certify to be necessary for the proper administration of the confederate and State governments, as the case may be." Has Congress the power to invest by law the president of the Confederate States with authority to strip the general government of these States of the officers provided for its administration by the constitution and laws? Has the confederate government the power to vest the executive of a sovereign State, or any other officer, with authority to displace the officers, provided for its administration by the constitution and laws of that State?
I will not argue these questions, and thereby leave the implication of doubt on my mind as to them. There can be but one answer given to them - that answer must be in the negative.
The constitution and laws of Texas have not only provided, but have determined, the officers necessary to the administration of the government, and they are, in their respective offices, discharging the duties imposed upon them by the authority referred to.
It is the duty of the executive of the State to respect and execute its laws, and to see that its constitution is not violated. These obligations are imposed on him by a solemn oath. He is nowhere empowered to veto or nullify laws already in force, nor to set aside provisions of the constitution.
The confederate government did not create the State government, nor did it establish its various offices, and provide for officials to fill them. It certainly, then, cannot judge of the officers necessary to its proper administration, or take them from their places of trust. If that government cannot do so directly, it certainly cannot do so indirectly, by vesting the power in any officer or person. So far as placing officers of the government into military service is concerned, it is a matter addressed to legislative and not to executive discretion, and that discretion is then restrained and restricted by the constitution. The legislature, so far as it is not controlled by the constitution, may dispense with such offices and officers as, in their wisdom, may be deemed proper, in view of the difficulties and dangers threatening the country. The executive can dispense with none, civil or military. Were I, as the executive of the State, to certify that any or all of the State officers were not necessary for its proper administration, the certificate would be without legal effect or power, and could be regarded in no other light than that of an authorized license given to the military authorities tto deprive the State of the officers provided for its administration, and thereby utterly to prostrate and bring into contempt the State government.
Where should I begin with the exercise of the power? Where should I end with it? How am I to determine the officers necessary? They all have their duties assigned them by the law. Shall I commence with the judiciary? Shall I deprive the courts of their magistrates, judges, clerks, sheriffs, and other officers? Shall I deprive the State of a comptroller and treasurer, of an adjutant general and secretary of state? Shall I break up the county courts? The attempt, therefore, to exercise such a power would not only be dangerous, but utterly unauthorized; and my respect for the whole frame-work of our government, and for my oath, as executive, forbids me to attempt its exercise. Its exercise can do not good; it can give no appreciable strength to the army or to our cause, and no such excuse, in my opinion, can be offered for it. It may be that the law of Congress was not intended to apply to the officers already provided for in the constitution and laws, and who are actually employed in the administration of the government, but to such only as might be thereafter found, from time ot time, to be necessary to assist in the adminstration of and in conducting the business of the State government. But it is not so construed by the conscript bureau in the trans-Mississippi department.
It is for you to determine whether the exigencies of the country require the abolishment of any of the offices established by the laws of the State, and of the functions of their officers; and if so, to make such regulations as you may deem proper and necessary. I cannot, however, be true to my convictions and forbear the expression of the opinion that the officers of the State, in view of the existing laws, the duties imposed by them, and the general condition of the community, should be kept in their positions, and held to a rigid and strict discharge of their duties. Those, however, who fail to discharge their duties faithfully should be placed in military service. No office, civil or military, should be a mere sinecure in this hour of trial and of peril to the country.
Report of the Joint Committee on Reconstruction of the First Session Thirty-Ninth Congress, Government Printing Office, Washington, 1866, Florida - Louisiana - Texas, page 112.