Part 62

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 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.

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.