Chapter X: Part 10

The exercise of the elective franchise is the highest attribute of an American citizen, and when guided by virtue, intelligence, patriotism, and a proper appreciation of our institutions constitutes the true basis of a democratic form of government, in which the sovereign power is lodged in the body of the people. Its influence for good necessarily depends upon the elevated character and patriotism of the elector, for if exercised by persons who do not justly estimate its value and who are indifferent as to its results it will only serve as a means of placing power in the hands of the unprincipled and ambitious, and must eventuate in the complete destruction of that liberty of which it should be the most powerful conservator. Great danger is therefore to be apprehended from an untimely extension of the elective franchise to any new class in our country, especially when the large majority of that class, in wielding the power thus placed in their hands, can not be expected correctly to comprehend the duties and responsibilities which pertain to suffrage. Yesterday, as it were, 4,000,000 persons were held in a condition of slavery that had existed for generations; to-day they are freemen and are assumed by law to be citizens. It can not be presumed, from their previous condition of servitude, that as a class they are as well informed as to the nature of our Government as the intelligent foreigner who makes our land the home of his choice. In the case of the latter neither a residence of five years and the knowledge of our institutions which it gives nor attachment to the principles of the Constitution are the only conditions upon which he can be admitted to citizenship; he must prove in addition a good moral character, and thus give reasonable ground for the belief that he will be faithful to the obligations which he assumes as a citizen of the Republic. Where a people--the source of all political power--speak by their suffrages through the instrumentality of the ballot box, it must be carefully guarded against the control of those who are corrupt in principle and enemies of free institutions, for it can only become to our political and social system a safe conductor of healthy popular sentiment when kept free from demoralizing influences. Controlled through fraud and usurpation by the designing, anarchy and despotism must inevitably follow.

In the hands of the patriotic and worthy our Government will be preserved upon the principles of the Constitution inherited from our fathers. It follows, therefore, that in admitting to the ballot box a new class of voters not qualified for the exercise of the elective franchise we weaken our system of government instead of adding to its strength and durability.

In returning this bill to the Senate I deeply regret that there should be any conflict of opinion between the legislative and executive departments of the Government in regard to measures that vitally affect the prosperity and peace of the country. Sincerely desiring to reconcile the States with one another and the whole people to the Government of the United States, it has been my earnest wish to cooperate with Congress in all measures having for their object a proper and complete adjustment of the questions resulting from our late civil war. Harmony between the coordinate branches of the Government, always necessary for the public welfare, was never more demanded than at the present time, and it will therefore be my constant aim to promote as far as possible concert of action between them. The differences of opinion that have already occurred have rendered me only the more cautious, lest the Executive should encroach upon any of the prerogatives of Congress, or by exceeding in any manner the constitutional limit of his duties destroy the equilibrium which should exist between the several coordinate departments, and which is so essential to the harmonious working of the Government. I know it has been urged that the executive department is more likely to enlarge the sphere of its action than either of the other two branches of the Government, and especially in the exercise of the veto power conferred upon it by the Constitution. It should be remembered, however, that this power is wholly negative and conservative in its character, and was intended to operate as a check upon unconstitutional, hasty, and improvident legislation and as a means of protection against invasions of the just powers of the executive and judicial departments. It is remarked by Chancellor Kent that--

To enact laws is a transcendent power, and if the body that possesses
it be a full and equal representation of the people there is danger of
its pressing with destructive weight upon all the other parts of the
machinery of Government. It has therefore been thought necessary by the
most skillful and most experienced artists in the science of civil
polity that strong barriers should be erected for the protection and
security of the other necessary powers of the Government. Nothing has
been deemed more fit and expedient for the purpose than the provision
that the head of the executive department should be so constituted as
to secure a requisite share of independence and that he should have a
negative upon the passing of laws; and that the judiciary power, resting
on a still more permanent basis, should have the right of determining
upon the validity of laws by the standard of the Constitution.

The necessity of some such check in the hands of the Executive is shown by reference to the most eminent writers upon our system of government, who seem to concur in the opinion that encroachments are most to be apprehended from the department in which all legislative powers are vested by the Constitution. Mr. Madison, in referring to the difficulty of providing some practical security for each against the invasion of the others, remarks that "the legislative department is everywhere extending the sphere of its activity and drawing all power into its impetuous vortex." "The founders of our Republic * * * seem never to have recollected the danger from legislative usurpations, which by assembling all power in the same hands must lead to the same tyranny as is threatened by Executive usurpations." "In a representative republic, where the executive magistracy is carefully limited both in the extent and the duration of its power, and where the legislative power is exercised by an assembly which is inspired, by a supposed influence over the people, with an intrepid confidence in its own strength, which is sufficiently numerous to feel all the passions which actuate a multitude, yet not so numerous as to be incapable of pursuing the objects of its passions by means which reason prescribes, it is against the enterprising ambition of this department that the people ought to indulge all their jealousy and exhaust all their precautions." "The legislative department derives a superiority in our governments from other circumstances. Its constitutional powers being at once more extensive and less susceptible of precise limits, it can with the greater facility mask, under complicated and indirect measures, the encroachments which it makes on the coordinate departments." "On the other side, the Executive power being restrained within a narrower compass and being more simple in its nature, and the judiciary being described by landmarks still less uncertain, projects of usurpation by either of these departments would immediately betray and defeat themselves. Nor is this all. As the legislative department alone has access to the pockets of the people and has in some constitutions full discretion and in all a prevailing influence over the pecuniary rewards of those who fill the other departments, a dependence is thus created in the latter which gives still greater facility to encroachments of the former." "We have seen that the tendency of republican governments is to an aggrandizement of the legislative at the expense of the other departments."

Mr. Jefferson, in referring to the early constitution of Virginia, objected that by its provisions all the powers of government--legislative, executive, and judicial--resulted to the legislative body, holding that "the concentrating these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one." "As little will it avail us that they are chosen by ourselves. An elective despotism was not the government we fought for, but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy as that no one could transcend their legal limits without being effectually checked and restrained by the others. For this reason that convention which passed the ordinance of government laid its foundation on this basis, that the legislative, executive, and judicial departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. But no barrier was provided between these several powers. The judiciary and executive members were left dependent on the legislative for their subsistence in office, and some of them for their continuance in it. If, therefore, the legislature assumes executive and judiciary powers, no opposition is likely to be made, nor, if made, can be effectual, because in that case they may put their proceedings into the form of an act of assembly, which will render them obligatory on the other branches. They have accordingly in many instances decided rights which should have been left to judiciary controversy; and the direction of the executive, during the whole time of their session, is becoming habitual and familiar."

Mr. Justice Story, in his Commentaries on the Constitution, reviews the same subject, and says:

The truth is that the legislative power is the great and overruling
power in every free government. * * * The representatives of the people
will watch with jealousy every encroachment of the executive magistrate,
for it trenches upon their own authority. But who shall watch the
encroachment of these representatives themselves? Will they be as
jealous of the exercise of power by themselves as by others? * * *

There are many reasons which may be assigned for the engrossing
influence of the legislative department. In the first place, its
constitutional powers are more extensive, and less capable of being
brought within precise limits than those of either the other
departments. The bounds of the executive authority are easily marked
out and defined. It reaches few objects, and those are known. It can
not transcend them without being brought in contact with the other
departments. Laws may check and restrain and bound its exercise. The
same remarks apply with still greater force to the judiciary. The
jurisdiction is, or may be, bounded to a few objects or persons; or,
however general and unlimited, its operations are necessarily confined
to the mere administration of private and public justice. It can not
punish without law. It can not create controversies to act upon. It can
decide only upon rights and cases as they are brought by others before
it. It can do nothing for itself. It must do everything for others. It
must obey the laws, and if it corruptly administers them it is subjected
to the power of impeachment. On the other hand, the legislative power
except in the few cases of constitutional prohibition, is unlimited. It
is forever varying its means and its ends. It governs the institutions
and laws and public policy of the country. It regulates all its vast
interests. It disposes of all its property. Look but at the exercise
of two or three branches of its ordinary powers. It levies all taxes;
it directs and appropriates all supplies; it gives the rules for the
descent, distribution, and devises of all property held by individuals;
it controls the sources and the resources of wealth; it changes at its
will the whole fabric of the laws; it molds at its pleasure almost all
the institutions which give strength and comfort and dignity to society.

In the next place, it is the direct visible representative of the will
of the people in all the changes of times and circumstances. It has the
pride as well as the power of numbers. It is easily moved and steadily
moved by the strong impulses of popular feeling and popular odium. It
obeys without reluctance the wishes and the will of the majority for the
time being. The path to public favor lies open by such obedience, and it
finds not only support but impunity in whatever measures the majority
advises, even though they transcend the constitutional limits. It has no
motive, therefore, to be jealous or scrupulous in its own use of power;
and it finds its ambition stimulated and its arm strengthened by the
countenance and the courage of numbers. These views are not alone those
of men who look with apprehension upon the fate of republics, but they
are also freely admitted by some of the strongest advocates for popular
rights and the permanency of republican institutions. * * *

* * * * *

* * * Each department should have a will of its own. * * * Each should
have its own independence secured beyond the power of being taken away
by either or both of the others. But at the same time the relations of
each to the other should be so strong that there should be a mutual
interest to sustain and protect each other. There should not only be
constitutional means, but personal motives to resist encroachments of
one or either of the others. Thus ambition would be made to counteract
ambition, the desire of power to check power, and the pressure of
interest to balance an opposing interest.

* * * * *

* * * The judiciary is naturally and almost necessarily, as has been
already said, the weakest department. It can have no means of influence
by patronage. Its powers can never be wielded for itself. It has no
command over the purse or the sword of the nation. It can neither lay
taxes, nor appropriate money, nor command armies, nor appoint to office.
It is never brought into contact with the people by constant appeals and
solicitations and private intercourse, which belong to all the other
departments of Government. It is seen only in controversies or in trials
and punishments. Its rigid justice and impartiality give it no claims to
favor, however they may to respect. It stands solitary and unsupported,
except by that portion of public opinion which is interested only in the
strict administration of justice. It can rarely secure the sympathy or
zealous support either of the Executive or the Legislature. If they
are not, as is not unfrequently the case, jealous of its prerogatives,
the constant necessity of scrutinizing the acts of each, upon the
application of any private person, and the painful duty of pronouncing
judgment that these acts are a departure from the law or Constitution
can have no tendency to conciliate kindness or nourish influence. It
would seem, therefore, that some additional guards would, under the
circumstances, be necessary to protect this department from the absolute
dominion of the others. Yet rarely have any such guards been applied,
and every attempt to introduce them has been resisted with a pertinacity
which demonstrates how slow popular leaders are to introduce checks upon
their own power and how slow the people are to believe that the
judiciary is the real bulwark of their liberties. * * *

* * * * *

* * * If any department of the Government has undue influence or
absorbing power, it certainly has not been the executive or judiciary.

In addition to what has been said by these distinguished writers, it may also be urged that the dominant party in each House may, by the expulsion of a sufficient number of members or by the exclusion from representation of a requisite number of States, reduce the minority to less than one-third. Congress by these means might be enabled to pass a law, the objections of the President to the contrary notwithstanding, which would render impotent the other two departments of the Government and make inoperative the wholesome and restraining power which it was intended by the framers of the Constitution should be exerted by them. This would be a practical concentration of all power in the Congress of the United States; this, in the language of the author of the Declaration of Independence, would be "precisely the definition of despotic government."

I have preferred to reproduce these teachings of the great statesmen and constitutional lawyers of the early and later days of the Republic rather than to rely simply upon an expression of my own opinions. We can not too often recur to them, especially at a conjuncture like the present. Their application to our actual condition is so apparent that they now come to us a living voice, to be listened to with more attention than at any previous period of our history. We have been and are yet in the midst of popular commotion. The passions aroused by a great civil war are still dominant. It is not a time favorable to that calm and deliberate judgment which is the only safe guide when radical changes in our institutions are to be made. The measure now before me is one of those changes. It initiates an untried experiment for a people who have said, with one voice, that it is not for their good. This alone should make us pause, but it is not all. The experiment has not been tried, or so much as demanded, by the people of the several States for themselves. In but few of the States has such an innovation been allowed as giving the ballot to the colored population without any other qualification than a residence of one year, and in most of them the denial of the ballot to this race is absolute and by fundamental law placed beyond the domain of ordinary legislation. In most of those States the evil of such suffrage would be partial, but, small as it would be, it is guarded by constitutional barriers. Here the innovation assumes formidable proportions, which may easily grow to such an extent as to make the white population a subordinate element in the body politic.

After full deliberation upon this measure, I can not bring myself to approve it, even upon local considerations, nor yet as the beginning of an experiment on a larger scale. I yield to no one in attachment to that rule of general suffrage which distinguishes our policy as a nation. But there is a limit, wisely observed hitherto, which makes the ballot a privilege and a trust, and which requires of some classes a time suitable for probation and preparation. To give it indiscriminately to a new class, wholly unprepared by previous habits and opportunities to perform the trust which it demands, is to degrade it, and finally to destroy its power, for it may be safely assumed that no political truth is better established than that such indiscriminate and all-embracing extension of popular suffrage must end at last in its destruction.

ANDREW JOHNSON.

WASHINGTON, _January 28, 1867_.

_To the Senate of the United States_:

I return to the Senate, in which House it originated, a bill entitled "An act to admit the State of Colorado into the Union," to which I can not, consistently with my sense of duty, give my approval. With the exception of an additional section, containing new provisions, it is substantially the same as the bill of a similar title passed by Congress during the last session, submitted to the President for his approval, returned with the objections contained in a message bearing date the 15th of May last, and yet awaiting the reconsideration of the Senate.

A second bill, having in view the same purpose, has now passed both Houses of Congress and been presented for my signature. Having again carefully considered the subject, I have been unable to perceive any reason for changing the opinions which have already been communicated to Congress. I find, on the contrary, that there are many objections to the proposed legislation of which I was not at that time aware, and that while several of those which I then assigned have in the interval gained in strength, yet others have been created by the altered character of the measures now submitted.

The constitution under which the State government is proposed to be formed very properly contains a provision that all laws in force at the time of its adoption and the admission of the State into the Union shall continue as if the constitution had not been adopted. Among those laws is one absolutely prohibiting negroes and mulattoes from voting. At the recent session of the Territorial legislature a bill for the repeal of this law, introduced into the council, was almost unanimously rejected; and at the very time when Congress was engaged in enacting the bill now under consideration the legislature passed an act excluding negroes and mulattoes from the right to sit as jurors. This bill was vetoed by the governor of the Territory, who held that by the laws of the United States negroes and mulattoes are citizens, and subject to the duties, as well as entitled to the rights, of citizenship. The bill, however, was passed, the objections of the governor to the contrary notwithstanding, and is now a law of the Territory. Yet in the bill now before me, by which it is proposed to admit the Territory as a State, it is provided that "there shall be no denial of the elective franchise or any other rights to any person by reason of race or color, excepting Indians not taxed."

The incongruity thus exhibited between the legislation of Congress and that of the Territory, taken in connection with the protest against the admission of the State hereinafter referred to, would seem clearly to indicate the impolicy and injustice of the proposed enactment.

It might, indeed, be a subject of grave inquiry, and doubtless will result in such inquiry if this bill becomes a law, whether it does not attempt to exercise a power not conferred upon Congress by the Federal Constitution. That instrument simply declares that Congress may admit new States into the Union. It nowhere says that Congress may make new States for the purpose of admitting them into the Union or for any other purpose; and yet this bill is as clear an attempt to make the institutions as any in which the people themselves could engage.

In view of this action of Congress, the house of representatives of the Territory have earnestly protested against being forced into the Union without first having the question submitted to the people. Nothing could be more reasonable than the position which they thus assume; and it certainly can not be the purpose of Congress to force upon a community against their will a government which they do not believe themselves capable of sustaining.

The following is a copy of the protest alluded to as officially transmitted to me:

Whereas it is announced in the public prints that it is the intention
of Congress to admit Colorado as a State into the Union: Therefore,

_Resolved by the house of representatives of the Territory_, That,
representing, as we do, the last and only legal expression of public
opinion on this question, we earnestly protest against the passage of a
law admitting the State without first having the question submitted to
a vote of the people, for the reasons, first, that we have a right to a
voice in the selection of the character of our government; second, that
we have not a sufficient population to support the expenses of a State
government. For these reasons we trust that Congress will not force upon
us a government against our will.

Upon information which I considered reliable, I assumed in my message of the 15th of May last that the population of Colorado was not more than 30,000, and expressed the opinion that this number was entirely too small either to assume the responsibilities or to enjoy the privileges of a State.

It appears that previous to that time the legislature, with a view to ascertain the exact condition of the Territory, had passed a law authorizing a census of the population to be taken. The law made it the duty of the assessors in the several counties to take the census in connection with the annual assessments, and, in order to secure a correct enumeration of the population, allowed them a liberal compensation for the service by paying them for every name returned, and added to their previous oath of office an oath to perform this duty with fidelity.

From the accompanying official report it appears that returns have been received from fifteen of the eighteen counties into which the State is divided, and that their population amounts in the aggregate to 24,909. The three remaining counties are estimated to contain 3,000, making a total population of 27,909.

This census was taken in the summer season, when it is claimed that the population is much larger than at any other period, as in the autumn miners in large numbers leave their work and return to the East with the results of their summer enterprise.

The population, it will be observed, is but slightly in excess of one-fifth of the number required as the basis of representation for a single Congressional district in any of the States--the number being 127,000.

I am unable to perceive any good reason for such great disparity in the right of representation, giving, as it would, to the people of Colorado not only this vast advantage in the House of Representatives, but an equality in the Senate, where the other States are represented by millions. With perhaps a single exception, no such inequality as this has ever before been attempted. I know that it is claimed that the population of the different States at the time of their admission has varied at different periods, but it has not varied much more than the population of each decade and the corresponding basis of representation for the different periods.

The obvious intent of the Constitution was that no State should be admitted with a less population than the ratio for a Representative at the time of application. The limitation in the second section of the first article of the Constitution, declaring that "each State shall have at least one Representative," was manifestly designed to protect the States which originally composed the Union from being deprived, in the event of a waning population, of a voice in the popular branch of Congress, and was never intended as a warrant to force a new State into the Union with a representative population far below that which might at the time be required of sister members of the Confederacy. This bill, in view of the prohibition of the same section, which declares that "the number of Representatives shall not exceed one for every 30,000," is at least a violation of the spirit if not the letter of the Constitution.

It is respectfully submitted that however Congress, under the pressure of circumstances, may have admitted two or three States with less than a representative population at the time, there has been no instance in which an application for admission has ever been entertained when the population, as officially ascertained, was below 30,000.

Were there any doubt of this being the true construction of the Constitution, it would be dispelled by the early and long-continued practice of the Federal Government. For nearly sixty years after the adoption of the Constitution no State was admitted with a population believed at the time to be less than the current ratio for a Representative, and the first instance in which there appears to have been a departure from the principle was in 1845, in the case of Florida. Obviously the result of sectional strife, we would do well to regard it as a warning of evil rather than as an example for imitation; and I think candid men of all parties will agree that the inspiring cause of the violation of this wholesome principle of restraint is to be found in a vain attempt to balance these antagonisms, which refused to be reconciled except through the bloody arbitrament of arms. The plain facts of our history will attest that the great and leading States admitted since 1845, viz, Iowa, Wisconsin, California, Minnesota, and Kansas, including Texas, which was admitted that year, have all come with an ample population for one Representative, and some of them with nearly or quite enough for two.

To demonstrate the correctness of my views on this question, I subjoin a table containing a list of the States admitted since the adoption of the Federal Constitution, with the date of admission, the ratio of representation, and the representative population when admitted, deduced from the United States census tables, the calculation being made for the period of the decade corresponding with the date of admission.

Colorado, which it is now proposed to admit as a State, contains, as has already been stated, a population less than 28,000, while the present ratio of representation is 127,000.

There can be no reason that I can perceive for the admission of Colorado that would not apply with equal force to nearly every other Territory now organized; and I submit whether, if this bill become a law, it will be possible to resist the logical conclusion that such Territories as Dakota, Montana, and Idaho must be received as States whenever they present themselves, without regard to the number of inhabitants they may respectively contain. Eight or ten new Senators and four or five new members of the House of Representatives would thus be admitted to represent a population scarcely exceeding that which in any other portion of the nation is entitled to but a single member of the House of Representatives, while the average for two Senators in the Union, as now constituted, is at least 1,000,000 people. It would surely be unjust to all other sections of the Union to enter upon a policy with regard to the admission of new States which might result in conferring such a disproportionate share of influence in the National Legislature upon communities which, in pursuance of the wise policy of our fathers, should for some years to come be retained under the fostering care and protection of the National Government. If it is deemed just and expedient now to depart from the settled policy of the nation during all its history, and to admit all the Territories to the rights and privileges of States, irrespective of their population or fitness for such government, it is submitted whether it would not be well to devise such measures as will bring the subject before the country for consideration and decision. This would seem to be eminently wise, because, as has already been stated, if it is right to admit Colorado now there is no reason for the exclusion of the other Territories.

It is no answer to these suggestions that an enabling act was passed authorizing the people of Colorado to take action on this subject. It is well known that that act was passed in consequence of representations that the population reached, according to some statements, as high as 80,000, and to none less than 50,000, and was growing with a rapidity which by the time the admission could be consummated would secure a population of over 100,000. These representations proved to have been wholly fallacious, and in addition the people of the Territory by a deliberate vote decided that they would not assume the responsibilities of a State government. By that decision they utterly exhausted all power that was conferred by the enabling act, and there has been no step taken since in relation to the admission that has had the slightest sanction or warrant of law.

The proceeding upon which the present application is based was in the utter absence of all law in relation to it, and there is no evidence that the votes on the question of the formation of a State government bear any relation whatever to the sentiment of the Territory. The protest of the house of representatives previously quoted is conclusive evidence to the contrary.

But if none of these reasons existed against this proposed enactment, the bill itself, besides being inconsistent in its provisions in conferring power upon a person unknown to the laws and who may never have a legal existence, is so framed as to render its execution almost impossible. It is, indeed, a question whether it is not in itself a nullity. To say the least, it is of exceedingly doubtful propriety to confer the power proposed in this bill upon the "governor elect," for as by its own terms the constitution is not to take effect until after the admission of the State, he in the meantime has no more authority than any other private citizen. But even supposing him to be clothed with sufficient authority to convene the legislature, what constitutes the "State legislature" to which is to be referred the submission of the conditions imposed by Congress? Is it a new body to be elected and convened by proclamation of the "governor elect," or is it that body which met more than a year ago under the provisions of the State constitution? By reference to the second section of the schedule and to the eighteenth section of the fourth article of the State constitution it will be seen that the term of the members of the house of representatives and that of one-half of the members of the senate expired on the first Monday of the present month. It is clear that if there were no intrinsic objections to the bill itself in relation to purposes to be accomplished this objection would be fatal, as, it is apparent that the provisions of the third section of the bill to admit Colorado have reference to a period and a state of facts entirely different from the present and affairs as they now exist, and if carried into effect must necessarily lead to confusion.

Even if it were settled that the old and not a new body were to act, it would be found impracticable to execute the law, because a considerable number of the members, as I am informed, have ceased to be residents of the Territory, and in the sixty days within which the legislature is to be convened after the passage of the act there would not be sufficient time to fill the vacancies by new elections, were there any authority under which they could be held.

It may not be improper to add that if these proceedings were all regular and the result to be obtained were desirable, simple justice to the people of the Territory would require a longer period than sixty days within which to obtain action on the conditions proposed by the third section of the bill. There are, as is well known, large portions of the Territory with which there is and can be no general communication, there being several counties which from November to May can only be reached by persons traveling on foot, while with other regions of the Territory, occupied by a large portion of the population, there is very little more freedom of access. Thus, if this bill should become a law, it would be impracticable to obtain any expression of public sentiment in reference to its provisions, with a view to enlighten the legislature, if the old body were called together, and, of course, equally impracticable to procure the election of a new body. This defect might have been remedied by an extension of the time and a submission of the question to the people, with a fair opportunity to enable them to express their sentiments.

The admission of a new State has generally been regarded as an epoch in our history marking the onward progress of the nation; but after the most careful and anxious inquiry on the subject I can not perceive that the proposed proceeding is in conformity with the policy which from the origin of the Government has uniformly prevailed in the admission of new States. I therefore return the bill to the Senate without my signature.

ANDREW JOHNSON.

States Admitted. Ratio. Population.
Vermont................................... 1791 33,000 92,320
Kentucky.................................. 1792 33,000 95,638
Tennessee................................. 1796 33,000 73,864
Ohio...................................... 1802 33,000 82,443
Louisiana................................. 1812 35,000 75,212
Indiana................................... 1816 35,000 98,110
Mississippi............................... 1817 35,000 53,677
Illinois.................................. 1818 35,000 46,274
Alabama................................... 1819 35,000 111,150
Maine..................................... 1820 35,000 298,335
Missouri.................................. 1821 35,000 69,260
Arkansas.................................. 1836 47,700 65,175
Michigan.................................. 1837 47,700 158,073
Florida................................... 1845 70,680 57,951
Texas..................................... 1845 70,680 189,327 [17]
Iowa...................................... 1846 70,680 132,527
Wisconsin................................. 1848 70,680 250,497
California................................ 1850 70,680 92,597
Oregon.................................... 1858 93,492 44,630
Minnesota................................. 1859 93,492 138,909
Kansas.................................... 1861 93,492 107,206
West Virginia............................. 1862 93,492 349,628
Nevada.................................... 1864 127,000 Not known.

[Footnote 17: In 1850.]

WASHINGTON, _January 29, 1867_.

_To the Senate of the United States_:

I return for reconsideration a bill entitled "An act for the admission of the State of Nebraska into the Union," which originated in the Senate and has received the assent of both Houses of Congress. A bill having in view the same object was presented for my approval a few hours prior to the adjournment of the last session, but, submitted at a time when there was no opportunity for a proper consideration of the subject, I withheld my signature and the measure failed to become a law.

It appears by the preamble of this bill that the people of Nebraska, availing themselves of the authority conferred upon them by the act passed on the 19th day of April, 1864, "have adopted a constitution which, upon due examination, is found to conform to the provisions and comply with the conditions of said act, and to be republican in its form of government, and that they now ask for admission into the Union." This proposed law would therefore seem to be based upon the declaration contained in the enabling act that upon compliance with its terms the people of Nebraska should be admitted into the Union upon an equal footing with the original States. Reference to the bill, however, shows that while by the first section Congress distinctly accepts, ratifies, and confirms the Constitution and State government which the people of the Territory have formed for themselves, declares Nebraska to be one of the United States of America, and admits her into the Union upon an equal footing with the original States in all respects whatsoever, the third section provides that this measure "shall not take effect except upon the fundamental condition that within the State of Nebraska there shall be no denial of the elective franchise, or of any other right, to any person by reason of race or color, excepting Indians not taxed; and upon the further fundamental condition that the legislature of said State, by a solemn public act, shall declare the assent of said State to the said fundamental condition, and shall transmit to the President of the United States an authentic copy of said act, upon receipt whereof the President, by proclamation, shall forthwith announce the fact, whereupon said fundamental condition shall be held as a part of the organic law of the State; and thereupon, and without any further proceeding on the part of Congress, the admission of said State into the Union shall be considered as complete." This condition is not mentioned in the original enabling act; was not contemplated at the time of its passage; was not sought by the people themselves; has not heretofore been applied to the inhabitants of any State asking admission, and is in direct conflict with the constitution adopted by the people and declared in the preamble "to be republican in its form of government," for in that instrument the exercise of the elective franchise and the right to hold office are expressly limited to white citizens of the United States. Congress thus undertakes to authorize and compel the legislature to change a constitution which, it is declared in the preamble, has received the sanction of the people, and which by this bill is "accepted, ratified, and confirmed" by the Congress of the nation.

The first and third sections of the bill exhibit yet further incongruity. By the one Nebraska is "admitted into the Union upon an equal footing with the original States in all respects whatsoever," while by the other Congress demands as a condition precedent to her admission requirements which in our history have never been asked of any people when presenting a constitution and State government for the acceptance of the lawmaking power. It is expressly declared by the third section that the bill "shall not take effect except upon the fundamental condition that within the State of Nebraska there shall be no denial of the elective franchise, or of any other right, to any person by reason of race or color, excepting Indians not taxed." Neither more nor less than the assertion of the right of Congress to regulate the elective franchise of any State hereafter to be admitted, this condition is in clear violation of the Federal Constitution, under the provisions of which, from the very foundation of the Government, each State has been left free to determine for itself the qualifications necessary for the exercise of suffrage within its limits. Without precedent in our legislation, it is in marked contrast with those limitations which, imposed upon States that from time to time have become members of the Union, had for their object the single purpose of preventing any infringement of the Constitution of the country.

If Congress is satisfied that Nebraska at the present time possesses sufficient population to entitle her to full representation in the councils of the nation, and that her people desire an exchange of a Territorial for a State government, good faith would seem to demand that she should be admitted without further requirements than those expressed in the enabling act, with all of which, it is asserted in the preamble, her inhabitants have complied. Congress may, under the Constitution, admit new States or reject them, but the people of a State can alone make or change their organic law and prescribe the qualifications requisite for electors. Congress, however, in passing the bill in the shape in which it has been submitted for my approval, does not merely reject the application of the people of Nebraska for present admission as a State into the Union, on the ground that the constitution which they have submitted restricts the exercise of the elective franchise to the white population, but imposes conditions which, if accepted by the legislature, may, without the consent of the people, so change the organic law as to make electors of all persons within the State without distinction of race or color. In view of this fact, I suggest for the consideration of Congress whether it would not be just, expedient, and in accordance with the principles of our Government to allow the people, by popular vote or through a convention chosen by themselves for that purpose, to declare whether or not they will accept the terms upon which it is now proposed to admit them into the Union. This course would not occasion much greater delay than that which the bill contemplates when it requires that the legislature shall be convened within thirty days after this measure shall have become a law for the purpose of considering and deciding the conditions which it imposes, and gains additional force when we consider that the proceedings attending the formation of the State constitution were not in conformity with the provisions of the enabling act; that in an aggregate vote of 7,776 the majority in favor of the constitution did not exceed 100; and that it is alleged that, in consequence of frauds, even this result can not be received as a fair expression of the wishes of the people. As upon them must fall the burdens of a State organization, it is but just that they should be permitted to determine for themselves a question which so materially affects their interests. Possessing a soil and a climate admirably adapted to those industrial pursuits which bring prosperity and greatness to a people, with the advantage of a central position on the great highway that will soon connect the Atlantic and Pacific States, Nebraska is rapidly gaining in numbers and wealth, and may within a very brief period claim admission on grounds which will challenge and secure universal assent. She can therefore wisely and patiently afford to wait. Her population is said to be steadily and even rapidly increasing, being now generally conceded as high as 40,000, and estimated by some whose judgment is entitled to respect at a still greater number. At her present rate of growth she will in a very short time have the requisite population for a Representative in Congress, and, what is far more important to her own citizens, will have realized such an advance in material wealth as will enable the expenses of a State government to be borne without oppression to the taxpayer. Of new communities it may be said with special force--and it is true of old ones--that the inducement to emigrants, other things being equal, is in almost the precise ratio of the rate of taxation. The great States of the Northwest owe their marvelous prosperity largely to the fact that they were continued as Territories until they had growth to be wealthy and populous communities.

ANDREW JOHNSON.

WASHINGTON, _March 2, 1867_.

_To the Senate of the United States_:

I have carefully examined the bill "to regulate the tenure of certain civil offices." The material portion of the bill is contained in the first section, and is of the effect following, namely:

That every person holding any civil office to which he has been
appointed, by and with the advice and consent of the Senate, and every
person who shall hereafter be appointed to any such office and shall
become duly qualified to act therein, is and shall be entitled
to hold such office until a successor shall have been appointed
by the President, with the advice and consent of the Senate, and duly
qualified; and that the Secretaries of State, of the Treasury, of War,
of the Navy, and of the Interior, the Postmaster-General, and the
Attorney-General shall hold their offices respectively for and during
the term of the President by whom they may have been appointed and for
one month thereafter, subject to removal by and with the advice and
consent of the Senate.

These provisions are qualified by a reservation in the fourth section, "that nothing contained in the bill shall be construed to extend the term of any office the duration of which is limited by law." In effect the bill provides that the President shall not remove from their places any of the civil officers whose terms of service are not limited by law without the advice and consent of the Senate of the United States. The bill in this respect conflicts, in my judgment, with the Constitution of the United States. The question, as Congress is well aware, is by no means a new one. That the power of removal is constitutionally vested in the President of the United States is a principle which has been not more distinctly declared by judicial authority and judicial commentators than it has been uniformly practiced upon by the legislative and executive departments of the Government. The question arose in the House of Representatives so early as the 16th of June, 1789, on the bill for establishing an Executive Department denominated "the Department of Foreign Affairs." The first clause of the bill, after recapitulating the functions of that officer and defining his duties, had these words: "To be removable from office by the President of the United States." It was moved to strike out these words and the motion was sustained with great ability and vigor. It was insisted that the President could not constitutionally exercise the power of removal exclusively of the Senate; that the Federalist so interpreted the Constitution when arguing for its adoption by the several States; that the Constitution had nowhere given the President power of removal, either expressly or by strong implication, but, on the contrary, had distinctly provided for removals from office by impeachment only.

A construction which denied the power of removal by the President was further maintained by arguments drawn from the danger of the abuse of the power; from the supposed tendency of an exposure of public officers to capricious removal to impair the efficiency of the civil service; from the alleged injustice and hardship of displacing incumbents dependent upon their official stations without sufficient consideration; from a supposed want of responsibility on the part of the President, and from an imagined defect of guaranties against a vicious President who might incline to abuse the power. On the other hand, an exclusive power of removal by the President was defended as a true exposition of the text of the Constitution. It was maintained that there are certain causes for which persons ought to be removed from office without being guilty of treason, bribery, or malfeasance, and that the nature of things demands that it should be so. "Suppose," it was said, "a man becomes insane by the visitation of God and is likely to ruin our affairs; are the hands of the Government to be confined from warding off the evil? Suppose a person in office not possessing the talents he was judged to have at the time of the appointment; is the error not to be corrected? Suppose he acquires vicious habits and incurable indolence or total neglect of the duties of his office, which shall work mischief to the public welfare; is there no way to arrest the threatened danger? Suppose he becomes odious and unpopular by reason of the measures he pursues--and this he may do without committing any positive offense against the law; must he preserve his office in despite of the popular will? Suppose him grasping for his own aggrandizement and the elevation of his connections by every means short of the treason defined by the Constitution, hurrying your affairs to the precipice of destruction, endangering your domestic tranquillity, plundering you of the means of defense, alienating the affections of your allies and promoting the spirit of discord; must the tardy, tedious, desultory road by way of impeachment be traveled to overtake the man who, barely confining himself within the letter of the law, is employed in drawing off the vital principle of the Government? The nature of things, the great objects of society, the express objects of the Constitution itself, require that this thing should be otherwise. To unite the Senate with the President in the exercise of the power," it was said, "would involve us in the most serious difficulty. Suppose a discovery of any of those events should take place when the Senate is not in session; how is the remedy to be applied? The evil could be avoided in no other way than by the Senate sitting always." In regard to the danger of the power being abused if exercised by one man it was said "that the danger is as great with respect to the Senate, who are assembled from various parts of the continent, with different impressions and opinions;" "that such a body is more likely to misuse the power of removal than the man whom the united voice of America calls to the Presidential chair. As the nature of government requires the power of removal," it was maintained "that it should be exercised in this way by the hand capable of exerting itself with effect; and the power must be conferred on the President by the Constitution as the executive officer of the Government."

Mr. Madison, whose adverse opinion in the Federalist had been relied upon by those who denied the exclusive power, now participated in the debate. He declared that he had reviewed his former opinions, and he summed up the whole case as follows: