Part 61

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.