short residence, a privilege they find nowhere else. It is within their power, in one year, to come into the District in such numbers as to have the supreme control of the white race, and to govern them by their own officers, and by the exercise of all the municipal authority-among the rest, of the power of taxation over property in which they have no interest. In Massachusetts, where they have enjoyed the benefits of a thorough educational system, a qualification of intelligence is required, while here suffrage is extended to all without discrimination, as well to the most incapable, who can prove a residence in the District of one year, as to those persons of color, who, comparatively few in number, are permanent inhabitants, and having given evidence of merit and qualification, are recognized as useful and responsible members of the community. Imposed upon an unwilling people, placed, by the Constitution, under the exclusive legislation of Congress, it would be viewed as an arbitrary exercise of power, and as an indication by the country of the purpose of Congress to compel the acceptance of negro suffrage by the States. It would engender a feeling of opposition and hatred between the two races, which, be coming deep-rooted and ineradicable, would prevent them from living together in a state of mutual friendliness. Carefully avoiding every measure that might tend to produce such a result, and following the clear and well-ascertained popular will, we should assiduously endeavor to promote kindly relations between them, and thus, when that popular will leads the way, prepare for the gradual and harmonious introduction of this new element into the political power of the country.

It cannot be urged that the proposed extension of suffrage in the District of Columbia is necessary to enable persons of color to protect either their interests or their rights. They stand here precisely as they stand in Pennsylvania, Ohio, and Indiana. Here, as elsewhere, in all that pertains to civil rights, there is nothing to distinguish this class of persons from citizens of the United States; for they possess the "full and equal benefit of all laws and proceedings for the security of person and property as is enjoyed by white citizens," and are made "subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.'

Nor,

as has been assumed, are their suffrages necessary to aid a loyal sentiment here; for local governments already exist of undoubted fealty to the Government, and are sustained by communities which were among the first to testify their devotion to the Union, and which during the struggle furnished their full quotas of men to the military service of the country.

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, cannot be expected correctly to comprehend the duties and responsibilities which pertain to suffrage. Yesterday, as it were, four million 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 cannot be presumed, from their pre

vious condition of servitude, that, as a class, they are as well informed as to the nature of our Govern. ment as the intelligent foreigner, who makes cur 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 citizen. ship. 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 powerspeak by their suffrages, through the instrumentali. ty of the ballot-box, it must be carefully guarded against the control of those who are corrupt in pric ciple 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 fres 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 De partments 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 coustant 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 was remarked by Chancelier Kent that

To enact laws is a transcendent power; and, if the bey that possesses it be a full and equal representation of the people, there is danger of its pressing with destructive weigh upon all the other parts of the machinery of Government. I has therefore been thought necessary, by the most sk and most experienced artists in the science of civil polity, that strong barriers should be erected for the protection 14 security of the other necessary powers of the Government. Nothing has been deemed more fit and expedient for the pate pose than the provision that the head of the Executive De partment should be so constituted as to secure a requista 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 execu tive 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 judiciary 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 continu ance 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 represent atives 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 of the other departments. The bounds of the executive authority are easily marked out and defined. It reaches few objects, and those are known. It cannot 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 cannot punish without law. It cannot 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 moulds 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 oleys, without reluctance, the wishes and the will of the mastrong impulses of popular feeling and popular odium. It jority 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 such 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 either the executive or judiciary.

In addition to what has been said by these distin

guished 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 cannot 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 cannot 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 5, 1867.

Veto of the Bill for the admission of Colorado, 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 cannot, 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 per ceive 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 this State govern ment 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 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 mulattees 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 legisla tion 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 cannot 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 Terri tory, That, representing as we do the last and only legal expression of public opinion on this question, we earnestly protest against the passage of the 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 volee 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

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 thirty thousand, and expressed the opinion that this number was entirely too small either to assume the responsibility 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 twenty-four thousand nine hundred and nine. The three remaining counties are estimated to contain three thousand, making a total population of twentyseven thousand nine hundred and nine.

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 one hundred and twenty-seven thousand.

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 thirty thousand," 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 thirty thousand.

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, namely, 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 twenty-eight thousand, while the present ratio of representation is one hundred and twenty-seven thousand.

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 one million 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 evidently 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 eighty thousand, and to none less than fifty thousand, and was grow. ing with a rapidity which, by the time the admission could be consummated, would secure a population of over a hundred thousand. These representations