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.

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