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.