January 15, 2013, 12:30 pm
By MICHAEL VORENBERG
Two weeks after President Abraham Lincoln signed the Emancipation Proclamation, a headline in The Detroit Free Press asked, “Is a Negro Eligible to the Presidency?” The editorial that followed offered an unequivocal “Yes.” A fiercely pro-Democratic paper, The Free Press despised the fact that the presidency, along with “all official positions,” could now “be open to the nigger.”
In the early weeks of 1863, such racist invective peppered the rhetoric of those disgusted by Lincoln’s edict of Jan. 1. But The Free Press was not talking about the Emancipation Proclamation when it declared “negro” eligibility for the presidency a “monstrous result.” Rather, it was talking about a document that history has tended to neglect, even though at the time many saw it as a critical adjunct to the Proclamation: the opinion of Attorney General Edward Bates declaring that free African-Americans born in the United States were citizens.
Bates had written the long opinion in November 1862, but newspapers did not get wind of the document until the eve of the Emancipation Proclamation. When they did, Bates at first downplayed his opinion’s significance, saying it dealt only with the citizenship status of one specific person, a free black man named David Selsey. But when pressed, he conceded that the document did indeed refute the part of the Supreme Court’s 1857 Dred Scott decision declaring that “colored” men had “no rights which the white man was bound to respect.” The press, public and politicians went wild.
That Bates of all people should defend black citizenship was peculiar. Generally regarded as the most conservative member of Lincoln’s cabinet, he had been born to a slave-owning family in Virginia. When he moved to Missouri, he sold what slaves he could for travel expenses. In Missouri, he helped draft a proslavery state constitution. When Dred Scott, a Missouri slave, sued for freedom, Bates had no problem with the opinion of Chief Justice Roger B. Taney that Scott, as a black person, was not a citizen and thus could not bring suit. He objected only to Taney’s pronouncement that Congress could not prohibit slavery in American territories. Yet Bates also earned some fame by successfully representing a Missouri slave who had sued for her freedom.
Bates’s credentials as a border-state conservative made him an obvious pick by Lincoln for a cabinet position. With his sharp features and grim demeanor, his shock of black hair and clipped white beard, he looked the part of a statesman. Yet his early career as attorney general was unremarkable. His voice was usually drowned out by those of Secretary of State William H. Seward, Secretary of War Edwin M. Stanton and Secretary of the Treasury Salmon P. Chase, all of whom Lincoln regarded as superior legal minds. Yet, as attorney general, Bates had a power that none of them had: he could write opinions that became laws of the land.
Although Bates deserves credit for the opinion, he would never have written it had his hand not been forced by Chase. The Treasury secretary was helping oversee the efforts of black and white Louisianans to create a new antislavery, pro-Union state constitution. Knowing that free blacks might be excluded from the process of state reconstruction if they were categorized as noncitizens, Chase looked for a way to have their citizenship established by law. The obvious routes, the adoption of a constitutional amendment nullifying Dred Scott or the reversal of that decision by the Supreme Court, had no chance of quick success. The former was achieved only in 1868 with the adoption of the 14th Amendment; the latter became conceivable only in 1864, when Taney died and Lincoln replaced him with Chase. But Chase knew he could get what he needed straightaway with an opinion from Bates. To solicit an opinion, though, he needed a specific case.
A racist parody of Republican efforts to play down the antislavery plank in their 1860 platform. Horace Greeley, the prominent New York publicist of the party, stands at left reassuring a man identified as “Young America.
David M. Selsey was not looking to change the course of American law. For more than a decade he had been in the mundane business of piloting small ships up and down the mid-Atlantic coast, carrying small cargoes to such undistinguished ports as Norwich, Conn., and Perth Amboy, N.J. He was black, but so were at least eight other ship masters in the region’s coastal trade. The sea had long offered African-American men liberties and opportunities denied to them on land. In May 1862, Robert Smalls, an enslaved seaman aboard a Confederate transport ship, donned a captain’s uniform and sailed the ship to Union waters, securing freedom for the black crew members and their families. An instant hero, he later served in the Union navy and, after the war, in the House of Representatives. Yet in 1862, Smalls’s color disqualified him from citizenship.
Unlike Smalls, David Selsey would never be known as a hero, never remembered in the history books. But it was Selsey who, through no deliberate effort of his own, put black citizenship on sure legal footing.
Five months after Smalls’s daring feat in Charleston, Selsey’s schooner was stopped off the southern New Jersey coast by a Treasury cutter, a type of boat charged with ensuring that coastal trading vessels had paid their revenues and were not smuggling. Probably word had come down from Chase for cutters to be on the lookout for black ship masters. Ship masters had to be citizens to be licensed, a policy that excluded blacks. With Selsey’s ship in custody, Chase had the perfect test case.
Edward Jordan, the solicitor of the Treasury, nearly botched Chase’s plans when he told the cutter captain that the Dred Scott decision was “erroneous,” and while it might control the rulings of the Supreme Court, “it ought not … control the Treasury Department, or the officers under its direction.” So much for judicial supremacy. Chase knew that Jordan’s opinion might not hold up. More important, he wanted an official legal opinion that would deal with black citizenship broadly, not just in the Treasury department.
Chase went to Bates in person on Sept. 15, 1862, to ask for the opinion. Bates balked at first; he was no doubt reluctant to say anything publicly about black citizenship. To Chase he offered the officious excuse that any request for an opinion had to be made in writing. So Chase tried again: on Sept. 24, two days after Lincoln issued the preliminary Emancipation Proclamation, he wrote Bates an official letter soliciting an opinion on the question: “Are colored men Citizens of the United States, and therefore Competent to command American vessels?”
The timing of the letter could not have been coincidental. For more than a year, Americans had been asking what the legal status was of slaves freed during the war, and the question became more urgent than ever after Lincoln issued the preliminary Proclamation. Chase seized the moment. Bates could not dodge the question. He agreed to write the opinion.
It didn’t come easily. He struggled with the document for more than two months. He read treatises on international law, he studied ancient Greek and Roman texts and he sought the counsel of Francis Lieber, a leading legal expert. American lawyers and judges, Bates complained to Lieber, had failed “to give a precise definition of Citizen (which I admit is very hard, if not impossible, to do).” Mostly, Bates read and re-read the Constitution — the most frustrating endeavor of all. As he would write in his opinion: “eighty years of practical enjoyment of citizenship, under the Constitution, have not sufficed to teach us either the exact meaning of the word, or the constituent elements of the thing we prize so highly.”
In the end, Bates came to two conclusions. First, being born in the United States made one a citizen. Birthright citizenship, or what Bates called citizenship by “accident of birth,” had long been a principle of Anglo-American law. Bates pointed out that even the Bible supported the principle. St. Paul saved himself from torture at the hands of Roman authorities in Jerusalem by successfully claiming that, having been born on Roman soil, he was a Roman citizen who could not be punished without what we today would call “due process of law.”
In the 19th century, Bates went on, the principle of birthright citizenship had unraveled in the United States, leaving behind a patchwork of laws that could not be fit together into a coherent whole. The result was that many Americans assumed that they were citizens if they had been born in the country, even though a series of legal opinions, culminating in the Dred Scott decision, denied birthplace as the basis of citizenship. Meanwhile, naturalization still rested on the 1790 law that declared that noncitizens could acquire citizenship only if they were “white.” Bates said nothing of the naturalization law, but he did declare that anyone free and born in the United States was necessarily a citizen.
Bates’s second conclusion also upended decades of American law by denying that there could be grades or classes of American citizenship. One either was or was not a citizen. Race, sex and age had no effect on citizenship status. “The child in the cradle and its father in the Senate, are equally citizens of the United States,” Bates wrote. And while some citizens might be denied political rights like the right to vote, such denial did not amount to “deprivation of citizenship,” regardless of whether the person was a “negro” or “a white woman or child.”
The final version of Bates’s opinion, which appeared as a letter to Chase, gave the Treasury secretary what he wanted. Chase sent copies of the opinion to his agents in Louisiana, who used it to silence those who denied the right of free blacks to participate in conventions leading to a new state constitution. Yet, because Bates had explicitly detached voting from citizenship, the opinion did nothing to advance the cause of black suffrage advocated by Louisiana African-Americans and supported by Chase.
As the day for signing the final Emancipation Proclamation approached, Chase may have been plotting how to use the Bates opinion in Louisiana, but Lincoln kept the opinion under wraps. He said nothing publicly about the document, and it is nowhere mentioned in his writings. No doubt he anticipated — correctly — that the opinion would become one more weapon in the arsenal of opponents who charged him with supporting “negro equality.” Only in the last days of December did newspapers somehow secure a full copy of Bates’s opinion and publish it for all to see.
The timing led the Emancipation Proclamation and the Bates opinion to become linked in the minds of many, even though neither document mentions the other. The New York Tribune, generally sympathetic to the abolitionist cause, declared that the opinion “properly precedes and ushers in that other great act which is to come from the president on the 1st of January.” Some outright abolitionist newspapers printed the opinion and the final proclamation side by side. More conservative newspapers, including The Times, tried to defuse any explosive implications of the opinion. All the document did, The Times declared, was remove “color” as “a bar to citizenship.” Were papers like The Detroit Free Press right in claiming that a black man could now be president? No, said The Times: “the free man of color” could “no more vote or be eligible to office than women and children.” As we know now, The Times called that one wrong.
Despite the disclaimers by representatives of the Lincoln administration, the Bates opinion was recognized by equal rights activists for what it was: an effort to demolish the Dred Scott opinion and all other vestiges of government-sanctioned discrimination. The editor of The Anglo-African, a leading black abolitionist paper, praised the opinion and congratulated Bates on reaching the same conclusion about legal citizenship for free blacks that had been expressed in The Anglo-African in 1859, in an editorial penned by James McCune Smith, one of the best-known African-American abolitionists of the era.
Long after the Bates opinion became public, Chase continued to wave it in Lincoln’s face, telling the president to invoke it to promote equal rights in the South. On April 11, 1865, Chase made what turned out to be his last appeal to Lincoln, reminding him in a private letter that “since the opinion of Attorney General Bates, no one, connected with your administration, has questioned the citizenship of free colored men more than that of free white men.” Chase was no longer a cabinet secretary; he was chief justice of the United States. His private letter was thus a potential violation of the constitutional principle of separation of powers. That fact aside, the letter revealed just how powerful Chase still considered the Bates opinion. Lincoln was less admiring. On the day that he received Chase’s letter, he gave a speech that said nothing about Bates’s opinion, though it would have been natural to invoke the opinion during the part of the speech that called for “giving the benefit of public schools equally to black and white.” The speech turned out to be Lincoln’s last. He was shot three days later.
Over time, the Bates opinion faded from public view. It was eclipsed first by the Civil Rights Act of 1866, then by the 14th Amendment of 1868, both of which enshrined the principles of birthright citizenship and equal citizenship. In the years that followed, state and then national authorities chipped away at those principles, with less and less resistance offered by federal courts. The result, by the turn of the 20th century, was a set of laws that continued to uphold birthright citizenship but effectively established different classes of citizens. Conservative though he was, Bates would have despaired.
In the days after his opinion was made public, Bates was often asked to clarify the meaning of the document. Did citizenship extend to all free African-Americans born in the United States, or only to those who were free prior to the war? Did it allow states to make distinctions among different types of citizens? Bates held his tongue on such matters, but in private he insisted that no distinctions could be made when it came to citizenship. Anyone free and born in the United States was a citizen. It didn’t matter when or how someone became free. State governments might continue to place restrictions on voting, which was not a basic right of citizenship, but they could not make distinctions among different types of citizens — not on the basis of “color,” and not on the basis of “race, religion, nativity, or any other discretionary cause.” He continued: “The Constitution was made as it is, for the very purpose of securing to every citizen, common and equal rights all over the nation.”