Page images

in the subject, and the power of naturalization in the nation | unless the fact of African descent be so incompatible with to which he goes. the fact of citizenship that the two cannot exist together. If they can coexist, in nature and reason, then they do coexist in persons of the indicated class, for there is no law to the contrary. I am not able to perceive any antagonism, legal or natural, between the two facts.

In the United States it is too late now to deny the political rights and obligations conferred and imposed by nativity; for our laws do not pretend to create or enact them, but do assume and recognize them as things known to all men, because pre-existent and natural; and therefore things of which the laws must take cognizance. Acting out this guiding thought, our Constitution does no more than grant to Congress (rather than to any other department) the power to establish a uniform rule of naturalization." And our laws made in pursuance thereof indue the made citizen with all the rights and obligations of the natural citizen. And so strongly was Congress impressed with the great legal fact that the child takes its political status in the nation where it is born, that it was found necessary to pass a law to prevent the alienage of children of our known fellow-citizens who happen to be born in foreign countries. The act of February 10, 1852, 10 Statutes, 604, provides that persons," (not white persons) "persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be, at the time of their birth, citizens of the United States, shall be deemed and considered, and are hereby declared to be, citizens of the United States: Provided, however, That the rights of citizenship shall not descend to persons whose fathers never resided in the United States.

[blocks in formation]

That is the law of birth at the common law of England, clear and unqualified; and now, both in England and America, modified only by statutes, made from time to time, to meet emergencies as they arise.

I have said that, prima facie, every person in this country is born a citizen; and that he who denies it in individual cases assumes the burden of stating the exception to the general rule, and proving the fact which works the disfranchisement. There are but a few exceptions commonly made and urged as disqualifying facts. I lay no stress upon the small and admitted class of the natural-born composed of the children of foreign ministers and the like; and

1. Slavery, and whether or no it is legally possible for a slave to be a citizen. On that point I make no question, because it is not within the scope of your inquiry, and does not concern the person to whom your inquiry relates.

2. Color. It is strenuously insisted by some that "perBons of color," though born in the country, are not capable of being citizens of the United States. As far as the Constitution is concerned, this is a naked assumption; for the Constitution contains not one word upon the subject. The exclusion, if it exist, must then rest upon some fundamental fact which, in the reason and nature of things, is so inconsistent with citizenship that the two cannot coexist in the same person. Is mere color such a fact? Let those who assert it prove that it is so. It has never been so understood nor put into practice in the nation from which we derive our language, laws, and institutions, and our very morals and modes of thought; and, as far as I know, there is not a single nation in Christendom which does not regard the new-found idea with incredulity, if not disgust. What can there be in the mere color of a man (we are speaking now not of race, but of color only) to disqualify him for bearing true and faithful allegiance to his native country, and for demanding the protection of that country? And these two, allegiance and protection, constitute the sum of the duties and rights of a "natural-born citizon of the United States."

3. Race.-There are some who, abandoning the untenable objection of color, still contend that no person descended from negroes of the African race can be a citizen of the United States. Here the objection is not color but race only. The individual objected to may be of very long descent from African negroes, and may be as white as leprosy, or as the intermixture for many generations with the Caucasian race can make him; still, if he can be traced back to negroes of the African race, he cannot, they say, be a citizen of the United States! And why not? The Constitution certainly does not forbid it, but is silent about the race as it is about color.

Our nationality was created and our political Government exists by written law, and inasmuch as that law does not exclude persons of that descent, and as its terms are manifestly broad enough to include them, it follows inevitably that such persons, born in the country, must be citizens,

But it is said that African negroes are a degraded race, and that all who are tainted with that degradation are for ever disqualified for the functions of citizenship. I can hardly comprehend the thought of the absolute incompatibility of degradation and citizenship. I thought that they often went together. But if it be true with regard to races, it seems to me more cogently true with regard to individuals. And if I be right in this, there are many sorrowful examples in the legislation and practice of various States in the Union to show how low the citizen may be degraded by the combined wisdom and justice of his fellow-citizens. In the early legislation of a number of States the most humiliating punishments were denounced against persons guilty of certain crimes and misdemeanors-the lash, the pillory, the cropping of the ears, and the branding of the face with an indelible mark of infamy. And yet a lower depth: in several of the States the common punishment of the crime of vagrancy was sale into bondage at public auction! And yet I have not read that such unfortunates thereby lost their natural-born citizenship, nor that their descendants are doomed to perpetual exclusion and degradation.

I am inclined to think that these objections, as to color and ancestral race, arise entirely from a wrong conception of the nature and qualities of citizenship, and from the loose and unguarded phraseology too often used in the discussion of the subject. I have already given, at some length, my own views of the word and the thing-citizenship. And now I will add only a few observations before drawing your attention to certain authorities upon the subject mostly relied upon by those who support the objections. In my opinion it is a great error, and the fruitful parent of errors, to suppose that citizens belong exclusively to republican forms of government. English subjects are as truly citizens as we are, and we are as truly subjects as they are. Imperial France (following imperial Rome) in the text of her laws calls her people citizens.-(Les Codes Français, book 1, tit. 1, ch. 1, and notes.) And we have a treaty with the present Emperor of the French, stipulating for reciprocal rights in favor of the citizens of the two countries respectively. (10 Stat., p. 996, art. 7.)

It is an error to suppose that citizenship is ever heredi tary. It never "passes by descent." It is as original in the child as it was in the parents. It is always either born with him or given to him directly by law.

In discussing this subject it is a misleading error to fail to mark the natural and characteristic distinction between political rights and political powers. The former belong to all citizens alike, and cohero in the very name and nature of citizenship. The latter (participation in the powers of government by voting and exercising office) does not belong to all citizens alike, nor to any citizen, merely in virtue of citizenship. His power always depends upon extraneous facts and superadded qualifications; which facts and qual ifications are co on to both citizens and alien

In referring to the authorities commonly adduced by those who deny the citizenship of colored people, I do not pretend to cite them all, but a few only of such as I believo to be most usually relied upon. And I will not trouble you with a detailed examination of the reasoning employed in each case, for I have already stated my own views of the principles and laws involved in the question; and where they conflict with the arguments upon which the contrary opinion is founded, I still adhere to my own.

The first of these authorities of which I will treat is the opinion of my predecessor, Mr. Wirt, upon a case precisely like the present, except that in that case the "free person of color" was a Virginian, and the objections to his compe tency were founded mainly, if not entirely, upon Virginia law. (See (Opinions of Attorneys General, vol. 1, p. 506, date November 7, 1821.) I have examined this opinion with the greater care, because of the writer's reputation for learning and his known and varied excellencies as a man.

In that case the precise question was, "whether free persons of color are, in Virginia, citizens of the United States, within the intent and meaning of the acts regulating foreign and coasting trade, so as to be qualified to command vessels." And thus Mr. Wirt was in a manner invited to consider the question rather in a statal than a national point of view; and hence we ought not to be surprised to find the whole argument for the exclusion based upon local institutions and statal laws.

As a general answer to all such arguments, I have this to say: Every citizen of the United States is a component member of the nation, with rights and duties, under the Constitution and laws of the United States, which cannot be destroyed or abridged by th laws of any particular State. The laws of the State, if they conflict with the laws of the

nation, are of no force. The Constitution is plain beyond cavil upon this point. Article 6: "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties, &c., shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." And from this I assume that every person who is a citizen of the United States, whether by birth or naturalization, holds his great franchise by the laws of the United States, and above the control of any particular State. Citizenship of the United States is an integral thing, incapable of legal existence in fractional parts. Whoever, then, has that franchise is a whole citizen and a citizen of the whole nation, and cannot be (as the argument of my learned predecessor seems to suppose) such citizen in one State and not in another.

I fully concur in the statement that "the description, citizen of the United States, used in the Constitution, has the same meaning that it has in the several acts of Congress passed under the authority of the Constitution." And I freely declare my inability to conceive of any second or subordinate meaning of the phrase as used in all those instruments. It means in them all the simple expression of the political status of the person in connection with the nation-that he is a member of the body politic. And that is all it means, for it does not specify his rights and duties as a citizen, nor in any way refer to such "rights, privileges, and immunities" as he may happen to have, by State laws or otherwise, over and beyond what legally and naturally belong to him in his quality of citizen of the United States. State laws may and do, nay must, vest in individuals great privileges, powers, and duties which do not be long to the mass of their fellow-citizens, and in doing so they consult discretion and convenience only. One citizen, who happens to be a judge, may, under proper circumstances, sentence another to be hanged, and a third, who happens to be a governor, may grant a pardon to the condemned man, who, as a citizen, is the undoubted peer of both the judge and the governor.

As to the objection (not in law, but sentiment only) that If a negro can be a citizen of the United States, he might, possibly, become President, the legal inference is true. There would be such a legal possibility. But those who make that objection are not arguing upon the Constitution as it is, but upon what, in their own minds and feelings, they think it ought to be. Moreover, they seem to forget that all limitations upon eligibility to office are less restrictions upon the rights of aspirants than upon the powers of electors. Even the legislature of the State, however unanimous, have no power to send to the Senate of the United States the wisest and best man unless he be thirty years old. And all the people of the nation, speaking with one united voice, cannot, constitutionally, make any man President who happens to be under thirty-five. This is, obviously, a restriction upon the appointing power-that is, in our popular government, a restriction upon the people themselves. As individuals, we may like it or dislike it, and flatter ourselves into the belief that we could make a wiser and better frame of government than our fathers made. Still it is our Constitution, binding upon us and upon every citizen from the moment of birth or naturalization.

The Constitution, I suppose, says what it means, and does not mean what it does not say. It says nothing about "the high characteristic privileges of a citizen of the State" (of Virginia or any other.) I do not know what they were, but certainly in Virginia, for the first half of the existence of the commonwealth, the right of suffrage was not one of them. For during that period no man ever voted there because he was a free white adult male citizen. He voted on his freehold, in land; and no candidate, in soliciting his election, appealed to the people or the citizens, but to the freeholders only, for they alone could vote.

I shall not trouble you with any argument touching the list of disabilities declared by the laws of Virginia against free negroes and mulattoes, as stated in the opinion, because they are such only as the Legislature, if so minded, might havo denounced as well against a portion of its own acknowledged citizens, whose weakness might necessitate submission.

of color in Virginia are not citizens of the United States, within the intent and meaning of the acts regulating for eign and coasting trade, so as to be qualified to command vessels."

The opinion, supported by the arguments upon which I have commented, is in these words:

"Upon the whole, I am of the opinion that free persons

As an authority this opinion is rebutted by the opirdan of Attorney General Legaré, above cited.-—(4 Op. A. G., 167, date March 15, 1843.) Under an act of Congress which limited the pre-emption of public land to citizens of the United States and aliens who had declared intention to be come citizens, according to the naturalization laws, Mr Le garé was of opinion that a free colored man was competent to pre-empt the land.

In that same opinion Mr. Legaré makes a just distinction between political and civil rights, which, I believe, is common to most nations. The French code expresses it very plainly, thus: "L'exercice des droits civils est ind pendant de la qualité de citoyen, laquelle ne s'acquiert et ne se comserve que conformément à la loi constitutionelle."

The next authority I shall consider is a decision of the Department of State made in Mr. Marcy's time, November 4, 1856, and evidenced by a letter of that date from Mr. Thomas, Assistant Secretary, to Mr. Rice, of New York. That decision is entitled to great consideration, becan upon such political questions the Secretary of State is of high authority. The case was an application for passport to travel in foreign parts, in favor of certain free blacks f some of the north rn States, and the time was a few months after the passage of the act of August 18, 1856, (the first act directing the issuing of passports to individuals and re stricting the issue to citizens of the United States, though the practice is much older.)

The letter, after stating the case, declares emphatically that "if this be so (i. e., if they be negroes) there can be doubt that they are not citizens of the United States." If this stood alone there could be no doubt of the opinion of the department at that time. But it does not stand alona The letter, after citing several authorities, and among them one from Tennessee, to which I will have occasion to refer by name, concludes with this qualifying paragraph, which leaves some doubt as to what was the real practical oplat of Mr. Secretary Marcy at that time. The letter, assuming that a passport is a certificate of citizenship, proceeds to say:

"Such being the construction of the Constitution in regard to free persons of color, it is conceived that they can not be regarded, when beyond the jurisdiction of this g ernment, as entitled to the full rights of citizens, but the Secretary directs me to say that though the department could not certify that such persons are citizens of the Un ted States, yet, if satisfied of the truth of the facts, it would

This is the letter alluded to:

DEPARTMENT OF STATE, WASHINGTON, November 4, 1556 SIR: Your letters of the 29th ultimo and 3d instant, In questing passports for eleven colored persons, have teen re ceived, and I am directed by the Secretary to inform you that the papers transmitted by you do not warrant the department in complying with your request. The question whether free negroes are citizens is not now presented ke the first time, but has repeatedly arisen in the adminstr tion of both the national and State governments. Ia 18 a controversy arose as to whether free persons of coler wire citizens of the United States, within the intent and me in.rg of the acts of Congress regulating foreign and coasting trad so as to be qualified to command vessels, and Wirt, Attoract General, decided that they were not, and he moreover he al that the words "citizens of the United States" were used in the acts of Congress in the same sense as in the Constit tion. This view is also fully sustained in a recent opina u of the present Attorney General.

The judicial decisions of the country are to the sam effect.

In Kent's Commentaries, volume 2, page 277, it is stated that in 1833, Chief Justice Daggett of Connecticut, held that free blacks are not "citizens," within the meaning of the term, as used in the Constitution of the United States: ani the Supreme Court of Tennessee, in the case of the State against Clairbone, held the same doctrine.

Such being the construction of the Constitution in regard

It is said in the opinion that "the allegiance which the
free man of color owes to the State of Virginia is no evi-to free persons of color, it is conceived that they cannot be
dence of citizenship, for he owes it not in consequence of an regarded, when beyond the jurisdiction of this Government,
oath of allegiance." This proposition surprises me; per- as entitled to the full rights of citizens; but the Secretary
haps I do not understand it. I did verily believe that the directs me to say that, though the department could not
oath of allegiance was not the cause but the sequence of certify that such persons are citizens of the United States,
citizenship, given only as a solemn guarantee for the per- yet, if satisfied of the truth of the facts, it would give a
formance of duties already incurred. But if it be true that certificate that they were born in the United States, are
the oath of allegiance must either create or precede citizen-free, and that the Government thereof would regard it to be
ship, then it follows, of necessity, that there can be no nat- its duty to protect them if wronged by a foreign_govern-
ural-born citizen, as the Constitution affirms, because the ment while within its jurisdiction for a legal and proper
child must needs be born before it can take the oath.

I am, sir, respectfully, your obedient servant,
J. A. THOMAS, Assistant Secretary.
HH, RICE, Esq., New York City.

[blocks in formation]

I turn now to the consideration of the Tennessee case, referred to and relied upon in the letter from the State Department-the State of Tennessee vs. Ambrose, (1 Meigs' R., 31,) adjudged in 1838. Ambrose, being a free negro emancipated in Kentucky, moved to and settled in Tennessee. He was indicted for that crime against the Tennessee statute, made to prevent the ingress of that sort of people. He demurred to the indictment upon the ground that he was a citizen of Kentucky, and as such had a right under the Constitution of the United States (art. 4, sec. 2,) to go to and abide in Tennessee in spite of the State statute. The court in which the indictment was found sustained the demurrer. The public prosecutor took the case up to the supreme court, where the judgment below was reversed, and it was held by the court that Ambrose, under the circumstances, could not be a citizen of Kentucky, and therefore could not claim the protection of the national constitution as against the Tennessee statute.

If we must have grades and classes of citizens, higher and lower, more and less favored, it seems to me impossible to sustain the proposition of the court that the humblest and most exalted are entitled to equal privileges and immunities. A free, white, natural-born female infant is certainly a citizen, and I suppose it would be but reasonable to place her in the lowest class. And I assume that it would not be deemed unreasonable to call that class the highest, out of which the President must be chosen. If eligibility to the presidency be a privilege in the lawful candidate-a peculiar right belonging to him, and not to the mass of citizens, then there is some difference; she is not entitled to all his privileges.

Those who most indulge in the assumption that to coninstitute a citizen at all the person must have all the privileges and immunities which any citizen can enjoy, rarely venture to specify precisely what they mean. Generally, I think, the inference is plain that they mean suffrage and eligibility; and, in that connection, I think I have already shown that suffrage and eligibility have no necessary connection with citizenship, and that the one may, and often does, exist without the other.

I must trouble you with a few remarks upon certain passages in the opinion of the court, which constitute the foundation of the judgment, and without which the judgment itself, having no legal basis to rest upon, ought not to have any authority as a precedent.

The court, after stating the case and citing from the Constitution, (art. 4, sec. 2.) "the citizens of each State shall be entitled to all the privileges and immunities of citizens the several States," proceeds: "the citizens here spoken of (says the supreme court of Tennessee) are those who are entitled to all the privileges and immunities of citizens.' But free negroes, by whatever appellation we call them, were never in any of the States entitled to all the privileges and immunities of citizens, and consequently were not intended to be included when this word was used in the Constitution.

"In this country," (continues the court,) "under the free government created by the Constitution, whose language we are expounding, the humblest white citizen is entitled to all the privileges and immunities' which the most exalted one enjoys. Hence, in speaking of the rights which a citizen of one State shall enjoy in every other State, as applicable to white men, it is very properly said that he should be entitled to all the privileges and immunities of citizens in each other State. The meaning of the language is that no privilege enjoyed by, or immunity allowed to, the most favored class of citizens in said State shall be withheld from a citizen of any other State. How can it be said that he enjoys all the privileges, when he is scarcely allowed a single right in common with the mass of the citizens of the State?

and by the persistent abuse of language. No distinction is drawn between the rights and duties as a member of society, without regard to his citizenship. The first are political merely-the last civil and social only. And the words rights, privileges, immunities are abusively used, as if they were synonymous. The word rights is generic, common, embracing whatever may be lawfully claimed. Privileges are special rights belonging to the individual or class, and not to the mass. Immunities are rights of exemption only-freedom from what otherwise would be a duty, obligation, or burden. For instance, the constitution of Tennessee (art. 4, sec. 1) declares that "all free men of color shall be exempt from military duty, in time of peace, and also from paying a free poll-tax." This is immunity. But whether there be or be not grades and classes of citizens, higher or lower, more or less favored, is wholly immaterial to this question. For the Constitution speaks of citizens only, without any reference to their rank, grade, or class, or to the number or magnitude of their rights, privileges, and immunities-citizens simply, without an adjective to qualify, enlarge, or diminish their rights and capacities. Therefore, if there be grades and classes of citizens, still the lowest individual of the lowest possible class is a citizen, and as such fills the requirement of the Constitution.

"It cannot be; and therefore either the free negro is not a citizen, in the sense of the Constitution, or, if a citizen, ht is entitled to all the privileges and immunities' of the mose favored class of citizens. But this latter consequence will be contended by no one. It must then follow that they are not citizens."

These are the foundations of the judgment in the case of Ambrose, and not only in that but in almost every similar case which I have had occasion to examine. A good deal of what I have already said is strictly applicable here, and in trying to show the fallacy of the reasoning of the court in Tennessee, I must take the risk of some needless repetition. The leading thought, that indeed which seems to have compelled the judgment against Ambrose, is, in my opinion, a naked assumption, not supported by any word of written law, nor maintainable by logical argument. It is assumed that a person to be a citizen at all must have all the rights, privileges, and immunities which the favored one enjoys; all of the most favored class of citizens. Now, if there be grades and classes of citizens, (which I am not exactly willing to admit,) it would seem that there must be something to distinguish the grades; some difference in the rights, privileges, and immunities of the different classes. And yet the court, while asserting the existence of different classes of citizens, asserts also their equality, by declaring that "the humblest white citizen is entitled to all the 'privileges and immunities' which the most exalted one enjoys." Then what marks the difference of classes? By what line can we separate humility from exaltation, as applied to a citizen?

In fact, it seems to me that the difficulties which surround the subject are artificial, created by the habitual confounding of things different in their nature and origin,

Again, "immunities" are enjoyed to a very large extent by free negroes in all the slaveholding States. They are generally exempted by law from the onerous duties of jurors in the courts, and militia men in the field; and these are immunities cagerly desired by many white men in all the States.

In another part of that opinion, the court declares that the word "freemen," as used in the constitution of Tennes see, is equivalent to citizen; and yet the court denies that the phrase "freemen of color," used in the same constitu tion, is a proper designation of citizens! I close my remarks upon that case with an extract from the constitution of Tennessee, (which was originally made in 1795, and amended in 1835,) reminding you only that, until 1790, Tennessee was a part of North Carolina, and subject to its constitution and laws, and hence the peculiar phraseology of the extract:

"Article 4, section 1. Every free white man, of the ago of twenty-one years, being a citizen of the United States and a citizen of the county wherein he may offer his vote six months next preceding the day of election, shall be entitled to vote for members of the general assembly and other civil officers for the county or district in which he resides: Provided, That no person shall be disqualified for voting, in any election, on account of color, who is now, by the laws of this State, a competent witness in a court of justice against a white man. All freemen of color shall be exempt from military duty in time of peace, and also from paying a free poll-tax."

Finally, the celebrated case of Scott vs. Sandford, 19 Howard's Reports, 393, is sometimes cited as a direct authority against the capacity of free persons of color to be citizens of the United States. That is an entire mistake. The case, as it stands of record, does not determine, nor purport to determine, that question. It was an ordinary suit for freedom, very common in our jurisprudence, and especially provided for in the legislation of most of the slaveholding States, as it is in Missouri, For convenience the form of the action usually is (and is in this case) trespass, alleging an assault and battery and false imprisonment, so as to enable the defendant, (the master,) if he choose, to make a direct issue upon the freedom or slavery of the plaintiff, which is the real point and object of the action, by pleading, in justification of the alleged trespass, that the plaintiff is a slave-his own or another man's.

Such an action Dred Scott, if entitled to freedom, might have brought in the State court, without any allegation of

citizenship, and without being, in fact, a citizen. But it seems he desired to bring his action in the circuit court of the United States in Missouri; and, to enable him to do that, ho had to allege citizenship, because Mr. Sandford, the defendant, was a citizen of New York, and unless the plaintiff were a citizen of Missouri (or some other State) the national court had no jurisdiction of the case.

The plaintiff having made his election to sue in the United States court, the defendant might, if he would, have pleaded in bar to the merits of the action, but he exercised his election to plead in abatement to the jurisdiction of the court; thus, that the action, if any, "accrued to the said Dred Scott out of the jurisdiction of this court, and exclusively within the jurisdiction of the courts of the State of Missouri, for that, to wit, the said plaintiff, Dred Scott, is not a citizen of the State of Missouri, as alleged in his declaration, [not because he was not born there, and born free, but] because he is a negro of African descent; his ancestors were of pure African blood, and were brought into this country and sold as negro slaves, and this the said Sandford is ready to verify. Wherefore he prays judgment whether this court can or will take further cognizance of the action aforesaid." To this plea the plaintiff demurred, and the circuit court sustained the demurrer, thereby declaring that the facts stated in the plea, and confessed by the demurrer, did not disqualify Scott for being a citizen of Missouri, and so that the United States circuit court had jurisdiction of the cause.

titled to all the respect which is due to the learned and upright sources from which the opinions come, was "dehors the record," and of no authority as a judicial decision.

To show that, notwithstanding all that was said upon other subjects, the action of the court was strictly confined to the plea in abatement, I copy the judgment:

"Upon the whole, therefore, it is the judgment of this court that it appears by the record before us that the plaintiff in error is not a citizen of Missouri, in the sen ein inlich that word is used in the Constitution, and that the circuit court of the United States, for that reason, had no jurishe tion in the case, and could give no judgment in it. Its judg ment for the defendant must, consequently, be reverse 4, and a mandate issued, directing the suit to be dismissed for want of jurisdiction."

And now, upon the whole matter, I give it as my opinion that the free man of color, mentioned in your letter, if born in the United States, is a citizen of the United States, and, if otherwise qualified, is competent, according to the acts of Congress, to be master of a vessel engaged in the coasting trade. All of which is respectfully submitted by your obedient servant, EDWARD BATES, Attorney General

In this argument I raise no question upon the legal validity of the judgment in Scott vs. Sandford. I only insist that the judgment in that case is limited in law, as it is, in fact, limited on the face of the record, to the plea in abatement; and, consequently, that whatever was said in the long course of the case, as reported, (240 pages,) respecting the legal merits of the case, and respecting any supposed legal disability resulting from the mere fact of color, though en

[ocr errors]

Pay of Colored Soldiers.

The circuit court having taken jurisdiction, the defendant had, of course, to plead over to the merits of the action. He did so, and issues were joined, and there was an elaborate trial of the facts, which resulted in a verdict and judgment in favor of the defendant. And thereupon the plaintiff brought the case up to the Supreme Court by writ of error. The power of the Supreme Court over the proceedings and judgments of the circuit court is appellate only, and this for the sole purpose of enabling the court above to affirm what has been rightly done, and reverse what has been wrongly done in the court below. If the error of the court below consist in the illegal assumption of power to hear and determine the merits of a case not within its jurisdic-enlistment, allowed to other soldiers in the voltion, of course the court above will correct that error, by unteer forces of the United States of like arms setting aside whatever may have been done by that usurped authority. And in doing this the court above has no more of the service. power than the court below had to hear and determine the merits of the case. And to assume the power to determine a case not within the jurisdiction is as great an error in the court above as in the court below; for it is equally true, in all courts, that the jurisdiction must first be ascertained before proceeding to judgment.

Attorney General Bates has decided that persons of color who were free on the 19th of April, 1861, and who were enlisted and mustered into the military service of the United States between December, 1862, and 16th of June. 1864, are entitled by law to receive the same amounts of pay, bounty and clothing, as are, by the law existing at the times of their

In this particular case the Supreme Court did first examine and consider the plea in abatement, and did adjudge that it was a good plea, sufficient to oust the jurisdiction of the circuit court. And hence it follows, as a necessary legal consequence, that whatever was done in the circuit court after the plea in abatement, and touching the merits of the case, was simply void, because done coram non judice.

Pleas in abatement were never favorites with the courts In England or America. Lord Coke tells us that they must be "certain to a certain intent, in every particular," and in practice they are always dealt with very strictly. When, therefore, the Supreme Court affirmed the plea in abate ment in this case, I assume that it is affirmed, in manner and form, as written, and not otherwise. And this not merely because pleas in abatement are always considered stricti legis, but also, and chiefly, because the decision tends to abridge the valuable rights of persons natural-born in the country, which rights ought not to be impaired, except upon the clearest evidence of fact and law.

Taking the plea, then, strictly as it is written, the persons who are excluded by this judgment from being citizens of Missouri must be negroes, not mulatoes, nor mestizos, nor quadroons. They must be of African descent, not Asiatic, even though they come of the blackest Malays in southeastern Asia. They must have had ancestors, (yet that may be doubtful, if born in slavery, of putative parents, who were slaves, and being slaves, incapable of contracting matrimony, and therefore every child must needs be a bastard, and so, by the common law, nullius filius, and incapable of ancestors.) His ancestors, if he had any, must have been of pure African blood, not mixed with the tawny Moor of Morocco or the dusky Arab of the desert, both of whom had their origin in Asia. They must have been brought to this country, not come voluntarily; and sold, not kept by the importer for his own use, nor given to his friends.


July 14, 1864


SIR: By your communication of the 24th ultimo, you require my opinion in writing, as to what amounts of pay, bounty and clothing are allowed by law to persons of color who were free on the 19th day of April, 1861, and who have been enlisted and mustered into the military service of the United States between the month of December, 1862, and the 16th of June, 1864.

I suppose that whatever doubt or difficulty may exist with regard to the amount of pay and allowances to which the soldiers to whom you refer are entitled, has mainly its origin in the several provisions of the act of July 17th, 1862, 201, (12 Stat. 599,) relative to the employment and en rollment of persons of African descent in the service of the United States. The 12th section of that statute provides, "That the President be and he is hereby authorized to receive into the service of the United States, for the purpose of coDstructing intrenchments or performing camp service, or any other labor, or any military or naval service for which they may be found competent, persons of African descent, and such persons shall be enrolled and organized under such regulations, not inconsistent with the Constitution and laws, as the President may prescribe." The 15th section of the same statute enacts, that "persons of African de scent who under this law shall be employed shall receive tem dollars per month and one ration, three dollars of which monthly pay may be in clothnig."

The first and main question, therefore, is, whether the persons of color referred to in your letter, who were mustered into the military service of the United States dering the period of time which you indicate, are porne e African descent," employed UNDER the statute of July 17th, 1862, chap. 201. If they are not thus employed, their com pensation should not be governed and is not regulated by the words of the 15th section of the statute, which I have just quoted.

Now I think that it is clear-too clear indeed to adm of doubt or discussion-that those persons of color who have voluntarily enlisted and have been mustered into our milltary service-who have been organized with appropriate officers into companies, regiments, and brigades of soldiers and who have done and are doing in the field and in gar rison the duty and service of soldiers of the United Statesare not persons of African descent employed tnder the statute to which I have referred.

I do not find, indeed, the act any authority to enlist


persons of African descent into the service, as soldiers. It will be observed that the said twelfth section enumerates two kinds of employment for which those persons are authorized to be enrolled, namely, constructing intrenchments and performing camp service. The section then contains a more general authority-authority to receive such persons into the service for the purpose of performing "any other labor or any military or naval service for which they may be found competent." I am bound, however, by every rule of law, respecting the construction of statutes, to construe these words of more general authority with reference to the character, nature and quality of the particular kinds of labor and service which are, in the first instance, specific ally enumerated in the statute, as those for the performance of which persons of African descent are authorized to be received into the service, and, therefore, I must suppose that Congress, when it conferred authority upon the President to receive into the service of the United States persons of African descent for the purpose of performing any other labor or any military service for which they may be found competent, meant and intended that that other labor and military service should be of the same general character, nature and quality as that which it had previously in the statute, specially named and designated. "Always in statutes," says Coke, "relation shall be made according to the matter precedent." Dwarris says: "sometimes words and sections are governed and explained by conjoined words and clauses: noscitur a socis." (Dwarris on stat. 604.)

1813, and January 27, 1814, "effective able-bodied men;" in the act of December 10, 1814, "free, effective able-bodied men between the ages of eighteen and fifty years;" and in the act of January 12, 1847, "able-bodied men." Some of the foregoing statutes are obsolete; others of them are still in force, and furnished, before the suspension of the writ of habeas corpus, the rule by which the validity of the enlistments of persons alleged to have been minors was every day tried in the State and Federal courts. They organized the military establishments of the United States in time of peace and in time of war. They embrace the periods of all the wars, previously to the present, in which the United States has been engaged. By no one of them was or is the enlistment of free colored men into the military service of the United States, whether as volunteers or as regulars, prohibited. After the war of 1812 claims for bounty land preferred by persons of color who had enlisted and served in the army under the statutes of 24th December, 1811, January 11, 1812, and December 10, 1814, were sustained as valid by the then Attorney General, William Wirt. (1 Opin., 603.) And when I turn to more recent statutes-those which authorized the raising and regulate the organization of the whole body of the volunteer forces now in the field, and provided for the maintenance and increase of the regular forces in the service-I discover throughout them no other statutory qualifications for recruits than those established by the earliest legislation to which I have referred.

It is not needed that I should specially recite the words Applying these rules of construction then to the act be- of those acts of Congress that provide for the pay, bounty, fore me, I am constrained to hold, that if the authority to and clothing to be allowel to soldiers in the volunteer enlist and muster into the military service soldiers of military service of the United States. It is enough to say African descent depended upon this statute, (as it does not.) that under the statutes relative to those subjects, and in it would furnish no foundation for such authority. It is force during the period of time mentioned in your commumanifest that the labor and service that United States nication, all volunteers competent and qualified to be memsoldiers are enlisted to perform, are of an essentially differ-bers of the national forces, are entitled respectively to reent character from, and are essentially of a higher nature, ceive like amounts of pay, bounty, and clothing from the order and quality than those kinds of labor and servico Government. specifically named in the statute, and for the performance of which the President is specially authorized to employ "persons of African descent." In my late opinion in the case of the claim of Rev. Samuel Harrison for full pay as Chaplain of the 54th Regiment of Massachusetts Volunteers, I expressed the same view when I said that the act of July 17, 1862, chap. 201, "was not intended either to authorize the employment or to fix the pay of any persons of African descent, except those who might be needed to perform the humbler offices of labor and service for which they might be found competent."

This view finds confirmation in a statute that received the approval of the President on the same day as the act before me-the statute of July 17, 1862, chap. 195 (12 Stat., 592)which conferred upon the President the authority to employ as many persons of African descent as he might deem necessary and proper for the suppression of the rebellion, and gave him power to organize and use them in such manner as he might judge best for the public welfare. In these words we may find clear and ample authority for the enlistment of persons of African descent as United States soldiers. It is under this act, if under either of the acts of July 17, 1862, that colored volunteer soldiers may be said to have been employed. There is no need to resort, therefore, to the statute of July 17, 1862, chap. 201, for any authority with respect to their employment, or for any rule in regard to their compensation. Persons of African descent employed as soldiers are not embraced at all, as I have shown, by the act of July 17, 1862, chap. 201, as objects or subjects of legislation; and we must therefore look to some other law for the measure of their compensation.

I find the law for the compensation of the persons of color referred to in your letter to me in the acts of Congress in force at the dates of the enlistments of those persons, respecting the amount of pay and bounty to be given and the amount and kind of clothing to be allowed to soldiers in the volunteer service of the United States. For, after a careful and critical examination, I believe, of every statute enacted since the foundation of the present Government relative to the enlistment of soldiers in the regular and volunteer forces of the United States, I have found no law which at any time prohibited the enlistment of free colored men into either branch of the national military service. The words of Congress descriptive of the recruits competent to enter the service were, in the act of April 30, 1790, "able-bodied men not under five feet six inches in height without shoes, not under the age of eighteen nor above the age of fortyfive;" in the act of March 3, 1795, "able-bodied, of at least fivo feet six inches in height, and not under the age of eighteen nor above the age of forty-six years;" in the act of March 3, 1799, "able-bodied and of a size and age suitable for the public service according to the directions which the President of the United States shall and may establish;" in the act of March 16, 1802, "effective able-bodied citizens of the United States, of at least five feet six inches high and between the ages of eighteen and forty-five years;" in the acts of December 24, 1811, January 11, 1812, January 20,

In view, therefore, of the foregoing considerations, I give it to you unhesitatingly, as my opinion, that the same pay, bounty, and clothing are allowed by law to the persons of color referred to in your communication, and who were enlisted and mustered into the military service of the United States between the months of December, 1862, and the 16th of June, 1864, as are by the laws existing at the times of the enlistments of said persons, authorized and provided for, and allowed to, other soldiers in the volunteer forces of the United States of like arms of the service.

I have the honor to be, very respectfully, your obedient servant, EDWARD BATES.

Gen. McClellan's Letters.


CAMP NEAR HARRISON'S LANDING, VA., July 7, 1862. MR. PRESIDENT: You have been fully informed that the rebel army is in the front, with the purpose of overwhelming us by attacking our positions or reducing us by blocking our river communications. I cannot but regard our condition as critical, and I earnestly desire, in view of possible contingencies, to lay before your excellency, for your private consideration, my general views concerning the existing state of the rebellion, although they do not strictly relate to the situation of this army, or strictly come within the scope of my official duties. These views amount to convictions, and are deeply impressed upon my mind and heart. Our cause must never be abandoned; it is the cause of free institutions and self-government. The Constitution and the Union must be preserved, whatever may be the cost in time, treasure, and blood. If secession is successful, other dissolutions are clearly to be seen in the future. Let neither military disaster, political faction, nor foreign war shake your settled purpose to enforce the equal operation of the laws of the United States upon the people of every State.

The time has come when the government must determine upon a civil and military policy, covering the whole ground of our national trouble.

The responsibility of determining, declaring, and supporting such civil and military policy, and of directing the whole course of national affairs in regard to the rebellion, must now be assumed and exercised by you, or our cause will be lost. The Constitution gives you power, even for the present terrible exigency.

This rebellion has assumed the character of a war; as such it should be regarded, and it should be conducted upon the highest principles known to Christian civilization. It should not be a war looking to the subjugation of the people of any State, in any event. It should not be at all a war upon population, but against armed forces and political organizations. Neither confiscation of property, political executions of persons, territorial organization of States, or

« PreviousContinue »