OPINION
i I,          A. -.
.o4                 e~.4
OF
ATTOR]Y GENERAL BATES
CITIZEN SHIP.
WASHINGTON:
GOVERNMENT PRINTING OFFICE.
1863.
0O 
I 
OPINION.
ATTORNEY GENERAL' S OFFICE,
November 29, 1862.
HON. S. P. CHASE,
Secretary of the Treasury.
SIR: Some time ago I had the honor to receive your letter submitting, for my opinion, the question whether or not colored men can be
citizens of the United States. The urgency of other unavoidable
engagements, and the great importance of the question itself, have
caused me to delay the answer until now.
Your letter states that "the schooner Elizabeth and Margaret, of
New Brunswick, is detained by the revenue cutter Tiger, at South
Amboy, New Jersey, because commanded by a'colored man,' and
so by a person not a citizen of the United States. As colored masters
are numerous in our coasting trade, I submit, for your opinion, the
question suggested by Captain Martin, of the Tiger: Are colored men
citizens of the United States, and therefore competent to command
American vessels?"
The question would have been more clearly stated if, instead of
saying are colored men citizens, it had been said, can colored men be
citizens of the United States; for within our borders and upon our
ships, both of war and commerce, there may be colored men, and
white men, also, who'are not citizens of the United States. In treating the subject, I shall endeavor to answer your question as if it
imported only this: Is a man legally incapacitated to be a citizen of
the United States by the sole fact that he is a colored, and not a
white man?
Who is a citizen? What constitutes a citizen of the United States?
I have often been pained by the fruitless search in our law books and,
the records of our courts, for a clear and satisfactory definition of'
the phrase citizen of the United States.  I find no such definition, no,
authoritative establishment of the meaning of the phrase, neither by'
a course of judicial decisions in our courts, nor by the continued and
consentaneous action of the different branches of our political government. For aught I see to the contrary, the subject is now as
little understood in its details and elements, and the question as open
to argument and to speculative criticism, as it was at the beginning 
4
,of the government. 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 most instances, within my knowledge, in which the matter of
citizenship has been discussed, the argument has not turned upon
the existence and the intrinsic qualities of citizenship itself, but upon
the claim of some right or privilege as belonging to and inhering in
the character of citizen.  In this way we are easily led into errors
both of fact and principle. We see individuals, who are known to be
citizens, in the actual enjoyment of certain rights and privileges, and
in the actual exercise of certain powers, social and political, and we,
inconsiderately, and without any regard to legal and logical consequences, attribute to those individuals, and to all of their class, the
enjoyment of those rights and privileges and the exercise of those
powers as incidents to their citizenship, and belonging to them only
in their quality of citizens.
In such cases it often happens that the rights enjoyed and the
powers exercised have no relation whatever to the quality of citizen,
and might be as perfectly enjoyed and exercised by known aliens.
For instance, General Bernard, a distinguished soldier and devoted
citizen of France, for a long time filled the office of general of engineers in the service of the United States, all the time avowing his
French allegiance, and, in fact, closing his relations with the United
States by resigning his commission and returning to the service of
his own native country. This, and all such instances, (and they are
many,) go to prove that in this country the legal capacity to hold
office is not confined to citizens, and therefore that the fact of holding
any office for which citizenship is not specially prescribed by law as a
qualification, is no proof that the incumbent is an American citizen.
Again, with regard to the right of suffrage, that is, the right to
choose officers of government, there is a very common error to the
effect that the right to vote for public officers is one of the constituent elements of American citizenship, the leading faculty indeed of
the citizen, the test at once of his legal right, and the sufficient
proof of his membership of the body politic. No error can be
greater than this, and few more injurious to the right understanding
of our constitutions and the actual working of our political governments. It is not only not true in law or in fact, in principle or in 
5
practice, but the reverse is conspicuously true; for I make bold to,
affirm that, viewing the nation as a whole, or viewing the States separately, there is no district in the nation in which a majority of the
known and recognized citizens are not excluded by law from the right
of suffrage. Besides those who are excluded specially on account of
some personal defect, such as paupers, idiots, lunatics, and men convicted of infamous crimes, and, in some States, soldiers, all females
and all minor males are also excluded. And these, in every community, make the majority; and yet, I think, no one will venture to
deny that women and children, and lunatics, and even convict felons,
may be citizens of the United States.
Our code (unlike the codes of France, and perhaps some other
nations) makes no provision for loss or legal deprivation of citizenship.  Once a citizen, (whether natus or datis, as Sir Edward Coke
expresses it,) always a citizen, unless changed by the volition and
act of the individual. Neither infancy nor madness nor crime can
take away from the subject the quality of citizen. And our laws do,
in express terms, declare women and children to be citizens. See,
for one instance, the act of Congress of February 10, 1855, 10 Stat.,
604.
The Constitution of the United States does not declare who are
and who are not citizens, nor does it attempt to describe the constituent elements of citizenship.  It leaves that quality where it found it,
resting upon the fact of home-birth, and upon the laws of the several States. Even in the important matter of electing members of
Congress, it does no more than provide that "the Ilouse of Representatives shall be composed of members chosen every second year
by the people of the several States; and the electors in the several States
shall have the qualifications requisite for the electors of the most
numerous branch of the State legislature." Here the word citizen is
not mentioned, and it is a legal fact, known of course to all lawyers
and publicists, that the constitutions of several of the States, in
specifying the qualifications of electors, do altogether omit and exclude the word citizen and citizenship.  I will refer, in proof, to but
three instances:
1. The constitution of Massachusetts, adopted in 1779-' 80, in article
4 of section 3, chapter 1, provides as follows: "Every male person
(being twenty-one years of age, and resident of a particular town in
this commonwealth for the space of one year next preceding) having
a freehold estate within the same town of the annual income of three
pounds, or any estate of the value of sixty pounds, shall have the 
6
right to vote ill the choice of representative or representatives for
said town."
2. The constitution of North Carolina. adopted in 1776, after a
bill of rights, and after reciting that "whereas allegiance and pro tection are, in their nature, reciprocal, and the one should of right
-be refused when the other is withdrawn," declares, in section 8,
"that all freemen at the age of twenty-one years, who have been
inhabitants of any one county within the State twelve months imme diately preceding the day of any election, and shall have paid public
taxes, shall be entitled to vote for members of the house of commons
for the county in which he resides."
3. The constitution of Illinois, adopted in 1818 in article 2, sec tion 27, declares that "in all elections all white male inhabitants above
the age of twenty-one years, having resided in the State six months
next preceding the election, shall enjoy the right of an elector; but
no person shall be entitled to vote except in the county or district in
which he shall actually reside at the time of' the election."
These three constitutions belong to States widely separated in
geographical position, varying greatly from each other in habits, man ners, and pursuits, having different climates, soils, productions, and
domestic institutions; and yet not one of the three has made citizen ship a necessary qualification for a voter; all three of them exclude
all females, but only one of' them (Illinois) has excluded the black
man from the right of suffrage.  And it is historically true that the
practice has conformed to the theory of those constitutions, respectively; for, without regard to citizenship, the colored man has not
voted in Illinois, and freemen of all colors have voted in North Carolina and Massachusetts.
From all this it is manifest that American citizenship does not
necessarily depend upon nor coexist with the legal capacity to hold
office and the right ot suffrage, either or both of them. The Constitution of the United States, as I have said, does not define citizenship; neither does it declare who may vote, nor who may hold office,
except in regard to a few of the highest national functionaries. And
the several States, as far as I know, in exercising that power, act
independently and without any controlling authority over them, and
hence it follows that there is no limit to their power in that particular but their own prudence and discretion; and therefore we are
not surprised to find that these faculties of voting and holding office
are not uniform in the different States, but are made to depend upon 
7
a variety of facts, purely discretionary, such as age, sex, race, color, 
property, residence in a particular place, and length of residence,
there.
On this point, then, I conclude that no person in the United States;
did ever exercise the right of suffrage in virtue of the naked, unassisted fact of citizenship. In every instance the right depends uponi
some additional fact and cumulative qualification, which may as per-}
fectly exist without as with citizenship.
I am aware that some of our most learned lawyers and able writers
have allowed themselves to speak upon this subject in loose- and indeterminate language.  They speak of "all the rights, privileges,
and immunities guaranteed by the Constitution to the citizen" without telling us what they are. They speak of a man's citizenship as,
defective and imperfect, because he is supposed not to have "all the
civil rights," (all the jura civitatis, as expressed by one of my predecessors,) without telling what particular rights they are nor what~
relation they have, if any, with citizenship. And they suggest, with-,
out affirming, that there may be different grades of citizenship of
higher and lower degree in point of legal virtue and efficacy; one}
grade " in the sense of the Constitution," and another inferior grader
made by a State and not recognized by the Constitution. 
In my opinion the Constitution uses the word citizen only to ex-"
press the political quality of the individual in his relations to thei
nation; to declare that he is a member of the body politic, and bound
to it by the reciprocal obligation of allegiance on the one side and,
protection on the other. And I have no knowledge of any otherl
kind of political citizenship, higher or lower, statal or national; or of
any other sense in which the word has been used in the Constitution,:
or can be used properly in the laws of the United States. The phrasel
"a citizen of the United States," without addition or qualification,
means neither more nor less than a member of the nation. And all;
such are, politically and legally, equal-the child in the cradle and
its father in the Senate are equally citizens of the United States.
And its need no argument to prove that every citizen of a State is,
necessarily, a citizen of the United States; and to me it is equally!
clear that every citizen of the United States is a citizen of the particular State in which he is domiciled.
And as to voting and holding office, as that privilege is not essen-;
tial to citizenship, so the deprivation of it by law is not a deprivation of citizenship. No more so in the case of a negro than in case
of a white woman or child. 
8
In common speech the word citizen, with more or less of truth and
pertinency, has a variety of meanings. Sometimes it is used in con trast with soldier; sometimes with farmer or countryman; sometimes
with alien orforeigner. Speaking of a particular man we ask, Is he a
citizen or a soldier? meaning, is he engaged in civil or military pur suits?  Is he a citizen or a countryman? meaning, does  he live in
the city or in the country? Is he a citizen or an alien? meaning, is he a member of our body politic or of some other nation?
The first two predicates relate only to the pursuits and to the place
of abode of the person. The last is always and wholly political, and
concerns only the political and governmental relations of the individual.   And it is only in this last sense, the political, that the
word is ever used in the Constitution and statutes of the United
States.
We  have  natural.born citizens,  (Constitution, article 2,    5,)
not made by law or otherwise, but born. And this class is the large
majority; in fact, the mass of our citizens; for all others are exceptions specially provided for by law. As they became citizens in the
natural way, by birth, so they remain citizens during their natural
lives, unless, by their own voluntary act, they expatriate themselves
and become citizens or subjects of another nation. For we have no
law (as the French have) to decitizenize a citizen, who has become such
either by the natural process of birth, or by the legal process of
adoption. And in this connection the Constitution says not one word,
and furnishes not one hint, in relation to the color or to -the ancestral
race of the " natural-born citizen." Whatever may have been said,
in the opinion of judges and lawyers, and in State statutes, about
negroes, mulattoes, and persons of color, the Constitution is wholly
silent upon that subject.   The  Constitution itself does not make
the citizens, (it is, in fact, made by them.)  It only intends and recognizes such of them as are natural-home-born-and provides for the
naturalization of such of them as were  alien-foreign-born-making
the latter, as far as nature will allow, like the former.
And I am not aware of any provision in our laws to warrant us in
presuming the existence in this country, of a class of persons intermediate between citizens and aliens. In England there is such a
class, clearly defined by law, and called denizens. "A denizen (says
Sir William Blackstone) is an alien born, but who has obtained, ex
donatione regis, letters patent to make him an English subject; a high
and incommunicable branch of the royal prerogative. A denizen is 
9
in a kind of middle state between an alien and a natural-born subject, and partakes of both of them."  (I Sharswood's Bl. (Corn., 374.)
In this country I know of but one legal authority tending to show
the existence of such a class among us.  One of my learned predecessors, Mr. Legare, (4 Opin.. 147,) supposes that there may be such
a class, and that free colored persons may be ranked in it. Yet,
in that same opinion, he declares that a "free man of color, a native
of this country, may be admitted to the privileges of a pre-emptioner
under the 10th section of the act of the 4th September, 1841."
And that act declares that a pre-emptioner must be either a citizen
of the United States or a person who had declared his intention to
become a citizen. as required by the naturalization laws.  Of course,
the " colored man" must have been a citizen or he could not have
entered the land under that act of Congress. If not a citizen tl1a,
by virtue of his native birth, he never could become one by force of
law.  For our laws extend the privileges of naturalization to such per- 
sons only as are "aliens, being free vwhite persons," and he was neither;| 
not alien, because natural-born in the country, and not a free wh7ite[
person, because, though free, confessedly "a man of color."
It occurs to me that the discussion of this great subject of national
citizenship has been much embarrassed and obscured by the fact that
it is beset with artificial difficulties, extrinsic to its nature, and having
little or no relation to its great political and national characteristics.
And these difficulties, it seems to me, flow mainly from two sources:
First, the existence among us of a large class of people whose
physical qualities visibly distinguish them from the mass of our
people, and mark a different race, and who, for the most part, are
held in bondage. This visible difference and servile connection
present difficulties hard to be conquered; for they unavoidably lead
to a more complicated system of government, both legislative and
administrative, than would be required if all our people were of one
race, and undistinguishable by outward signs. And this, without
counting the effect upon the opinions, passions, and prejudices of
men. Second, the common habit of many of our best and most
learned men (the wise aptitude of which I have not been able to
perceive) of testing the political status and governmental relation of
our people by standards drawn from the laws and history of ancient
Greece and Rome, without, as I think, taking sufficient account of the
organic differences between their governments and ours. 
10
A very learned writer upon the Politics of Greece (Heeren, Bancroft's translation, p. 105) informs us "that the essential character
of the new political form assumed by Greece consisted in the circumstance that the free States which were formed were nothing but cities
with their districts; and their constitutions were, consequently, only
forms of city governments. This point of view (the learned author
warns us) must never be lost sight of."
And the wise observation of the author applies to Italy as well;
for the earliest free cities of Italy were but Grecian colonies, which
(bringing along with them the higher civilization. of their parent
country, and its better notions of civil polity) by degrees diffused
the light of knowledge, and consequently the love of liberty among
the then barbarous people of the Italian peninsula. The Italians,
profiting by the good example, founded cities of their own upon the
Grecian models, and each new Italian city became an independent
State.  How long this condition of things continued I know not;
but it continued until Rome outgrew all the neighboring communities, and subdued them all (the Grecian colonies included) under its
power.  Still the city ruled, and from time to time granted to such as
it would (and withheld from such as it would) the title of Roman, and
the rights of Roman citizens.
In process of time, when the dominant power of Rome had
expanded over Greece and western Asia, the same civil polity was
still continued.  As it had been in Italy, so it was in Greece and
Asia. In the countries and kingdoms subdued by the Roman arms
and transformed into Roman provinces, the same system of government still prevailed. Rome, by her pro-consuls and other governors,
ruled the conquered nations with absolute sway. And the ruling
power at Rome, whether republican or imperial, granted, from time
to time, to communities and to individuals in the conquered east the
title of Roman and the rights of Roman citizens.
A striking example of this Roman naturalization, of its controlling
authority as a political law, and of its beneficent power to protect a
persecuted citizen, may be found in the case of St. Paul, as it is
graphically reported in the Acts of the Apostles. Paul, being at
Jerusalem, was in great peril of his life from his own countrymen,
the Jews, who accused him of crimes against their own law and faiith,
and were about to put him to death by mob violence, when he was
rescued by the commander of the Roman troops and taken into a fort
for security. He first explained, both to the Roman officer and to
...... 
11
his own countrymen, who were clamoring against him, his local status
and municipal relations, that he was a Jew of Tarsus, a natural-born
citizen of no mean city, and that he had been brought up in Jerusalem
in the strictest manner according to the law and faith of the fathers.
But this did not appease the angry crowd, who were proceeding
with great violence to kill him. And then "the chief captain commanded that he be brought into the castle, and bade that he should
be examined by scourging," (that is, tortured to enforce confession.)
"And as they bound him with thongs, Paul said unto the centurion
that stood by, Is it lawful for you to scourge a man that is a Roman
and uncondemned?  When the centurion heard that he went out and
told the chief captain, saying, Take heed what thou doest, for this
man is a Roman. Then the chief captain came and said, Tell me, art
thou a Roman? He said Yea, and the chief captain said, With a
great sum obtained I this f)eedom.  And Paul said, But I was free
born. Then straightway they departed from him which should have
examined him. And the chief captain also was afraid, after he knew
that he was a Roman, and because he had bound him."
Thus Paul, under circumstances of great danger and obloquy, asserted his immunity, as "a Roman uncondemned," from ignominious
constraint and cruel punishment, a constraint and punishment against
which, as a mere provincial subject of Rome, he had no legal protect
tion.  And thus the Roman officers instantly, and with fear, obeyed
the law of their country and respected the sacred franchise of the
Roman citizen.
Paul, as we know by this record, was a natural-born citizen of
Tarsus, and as such, no doubt, had the municipal freedom of that
city; but that would not have protected him against the thongs and
the lash.  How lie became a Roman we learn from other historical
sources.   Cesar granted to the people of Tarsus (for some good
service done, probably for taking his side in the war which resulted
in the establishment of the empire) the title of Roman, and the freedom of Roman citizens.  And, considering the chronology of events,
this grant must have been older than Paul; and therefore he truly
said I was free born-a free citizen of Rome, and as such exempt by
law from degrading punishment.
And this immunity did not fill the measure of his rights as a citizen.
As a Roman, it was his right to be tried by the supreme authority,
at the capital of the empire. And when he claimed that right, and
appealed from the jurisdiction of the provincial governor to the 
12
emperor at Rome, his appeal was instantly allowed, and he was remitted to "Caesar's judgment."
I have dwelt the longer upon this case of Paul, because it is a
leading case in Roman jurisprudence in the matter of the "jus Romanurm." And in so far as there is any analogy between Roman
and American citizenship, it is strictly applicable to us. Its authenticity is unquestionable, and by its lucid statement of facts in minute
detail leaves no room to doubt the legal merits of the case. It
establishes the great protective rights of the citizen, but, like our own
national constitution, it is silent about his powers.  It protected
Paul against oppression and outrage, but said nothing about his right
of suffrage or his eligibility to office.
As far as I know, Mr. Secretary, you and I have no better title to
the citizenship which we enjoy than the "accident of birth"-the
fact that we happened to be born in the United States.  And our
Constitution, in speaking of natural-born citizens, uses no affirmative
language to make them such, but only recognizes and reaffirms the
universal principle, common to all nations, and as old as political
society, that the people born in a country do constitute the nation,
and, as individuals, are natural members of the body politic.
If this be a true principle, and I do not doubt it, it follows that
every person born in the country is, at the moment of birth, prima
facie a citizen; and he who would deny it must take upon himself the
burden of proving some great disfranchisement strong enough to
override the "natural-born" right as recognized by the Constitution
in terms the most simple  and comprehensive,  and without  any
reference to race or color, or any other accidental circumstance.
That nativity furnishes the rule, both of duty and of right as between the individual and the government, is a historical and political
truth so old and so universally accepted that it is needless to prove
it by authority.  Nevertheless, for the satisfaction of those who may
have doubts upon the subject, I note a few books, which, I think,
cannot fail to remove all such doubts-Kent's Com., vol. 2, part 4,
sec. 25; Bl. Com.. book 1, ch. 10, p. 365; 7 Co. Rep., Calvin's case;
4 Term Rep., p. 300, Doe v. Jones; 3 Pet. Rep., p. 246; Shanks v.
Dupont; and see a very learned treatise, attributed to Mr. Binney,
in 2 Am. Law Reporter, 193.
In every civilized country the individual is born to duties and
rights-the duty of allegiance and the right to protection; and these
are correlative obligations, the one the price of the other, and they
I 
constitute the all-sufficient bond of union between the individual and
his country; and the country he is born in is, prima.facie, his country.
In most countries the old law was broadly laid down that this natural
connection between the individual and his native country was perpetual; at least, that the tie was indissoluble by the act of the
subject alone.-(See B1. Corn. supra; 3 Pet. Rep. supra.)
But that law of the perpetuity of allegiance is now changed, both
in Europe and America. In some countries by silent acquiescence,
in others by affirmative legislation. In England, while asserting the
perpetuity of natural allegiance, the King, for centuries past, has
exercised the power to grant letters of denization to foreigners,
making them English subjects, and the Parliament has exercised at
pleasure the power of naturalization.
In France the whole subject is regulated by written law, which
plainly declares who are citizens (citoyens Franqais) and who are only
the French, (Frangais,) meaning the whole body of the French people.(See Les Codes Franqais, titre premier.)  And the same law distinctly
sets forth by what means citzenship and the quality of French may be
lost and regained; and maintains fully the right of expatriation in
the subject, and the power of naturalization in the nation to which
he goes.
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 fellowcitizens 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
13 
14
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 re sided in the United States.
"SEC. 2. And be it.further enacted, That any woman who might law fully be naturalized under the existing laws, married, or who shall
be married to a citizen of the United States, shall be deemed and
taken to be a citizen."
But for that act, children of our citizens who happen to be born at
London, Paris, or Rome, while their parents are there on a private
visit of pleasure or business, might be brought to the native home of
their parents, only to find that they themselves were aliens in their
father's country, incapable of inheriting their father's land, and with
no right to demand the protection of their father's government.
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, primafacie, 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. Oil that point I make no question, because it is not
within the scope of your enquiry, and does not concern the person
to whom your enquiry relates.
2. Color. -It is strenuously insisted by some that "persons 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
Do A S CowIGo  v - i?
t    
I
l~ 
15
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 mall (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 citizen of the J
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 hlie can be traced back to
negroes of the African race, he cannot, they say, be a citizen of the
United States I And why not? The Constitution certainly does not
forbid it, but is silent about 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, unless the fact of African descent be so incompatible with 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.
But it is said that African negroes are a degraded race, and that
all who are tainted with that degradation are forever 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 the States the most humiliating punishments were denounced against persons guilty of certain crimes and misdemeanors 
16
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 thingcitizenship. 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
Code8 Francais, 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 hereditary.  It
never "passes by descent." It is as original in the child as it was
in his 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 cohere
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 qualifications are common
to both citizens and aliens.
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 believe to be most usually relied upon. 
17
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 competency 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 ail 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 the 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 artny 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.
2 
18
I fully concur in the statement that "the description, citizen of the
UTnited 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' allny
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 ci.tizen, 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 whiat 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 whichi do not belong 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, vwho happens to
be governor, may grant a pardon to the condemned man, wNho, 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, hlie 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 their 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 manl President who happens to be uunder 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 char 
19
acteristic 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 freeIholders 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 have denounced as well against a
portion of its own acknowledged  citizens, whose weakness  might
necessitate submission.
It is said in the opinion that "the allegiance which the free man
of color owes to the State of Virginia is no evidence of citizenship,
for he owes it not in consequence of an oath of allegiance."   This
proposition surprises me; perhaps I do not understand it.  I did
verily believe that the oath of allegiance was not the cause but the
sequence of citizenship, given only as a solemn guarantee for the
performance of duties already incurred.  But if it be true that the
oath of allegiance must either create or precede citizenship, then it
follows, of necessity, that there can be no natur-a7-born citizen, as the
Constitution affirms, because the child must needs be born before it
can take the oath.
The opinion, supported by the arguments upon which I have comminented, is in these words:
"Upon the whole, I am of the opinion that free persons of color
n Virginia are not 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."
As an authority this opinion is rebutted by the opinion of Attorney
General Legare, above cited.-(4 Op. A. G., 147, 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 become citizens, according to the naturalization
laws, Mr. Legare was of opinion that a free colored man was competent to pre empt the land.
In that same opinion Mr. Legare makes a just distinction between
political and civil rights, which, I believe, is common to most nations. 
20
The French code expresses it very plainly, thus: "L'exercice des
droits civils est ind pendant de la qualite de citoyeu, laquelle ne
s'acquiert et ne se conserve que conformement a 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,
because upon such political questions the Secretary of State is of
high authority. The case was an application for passports to travel
in foreign parts, in favor of certain free blacks of some of the northern
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 restricting 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 no 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 alone. 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 opinion 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 cannot be regarded, when
beyond the jurisdiction of this government, as entitled to the fjtll rights
of citizens, but the Secretary directs me to say that though the department could not certify that such persons are citizens of the United
States, yet, if satisfied of the truth of the facts, it would give a certificate that they were born in the UTnzited States, are free, and that the
government thereof would regard it to be its duty to protect them, if
wronged by a foreign government, while within its jurisdiction for a
legal and proper purpose."
It seems to me that the certificate proposed to be given would be,
in substance and fact, a good passport, for the act of Congress prescribes no form for the passport, and requires no particular fact to
appear upon its face. And I confidently believe that there is not a
government in Europe which, in view of our l'Lws of citizenship, 
21
would question the validity of a passport which declares upon its face
that the bearer is a free nattural-born inhalitant Of the United States.
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 Meig's R., 331,) 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.
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 judgement 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 in 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 ejoys. Hience, 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 (aIllowed to, the most favored class of citizens in said
State shall be withheld from a citizen of any other State. How can 
22
it be said that he enjoys all the privileges, when he is scarcely allowed
a si)glje rq1ght in common with the mass of the citizens of the State?
-'It cannot be; and therefore either the firee negro is not a citizen,
in the sense of the Constituticn, or, if a citizen, he is entitled to'all
the privileges and immunities' of the most favored class of citizens.
But this latter consequence will be contended by no one.   It miust
then follow that they we 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 most 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 hunmblest 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, and by the persistent abuse of
language.   No distinction is drawn between the rights and duties of
a man as a citizen and his 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, p7'ivileges, 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 
23
"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 an immunity.
But whether there be or be not grades and classes of citizens,
higher or lower, more or less favored, is vlwholly 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 magni tude of their rights, privileges, and immunitie-citizens simply, without an adjective to qualify, enlarge, or diminilsh their rights and ca pacities.  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.
If we must have grades and classes of citizens, higher and lowver,
more and less favored, it seems to me impossible to sustain the proposition of the court that the humblest and the 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
privileye in the lawful candidate-a peculiar righit belonging to him,
and not to the mass of citizens, then there is some difference; she is
not entitled to cell his privileges.
Those who most indulge in the assumption that to constitute a citizen at all the person must have all the privileges and immunities
which any citizen can enjoy, rarely venture to specify plecisely 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 wvithl citizenship, and that the one may, and often does, exist
without the other.
Again,  "immunities" are enjoyed to a very large extent by free
negroes in all the slaveholding States.  They are generally exempted
by lavw from the onerous duties of jurors in the courts, and minilitia men
in the field; and these are immunities eagerly 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 Tennessee, is equivalent
to citizen; and yet the court denies that the phrase "ireemen of
color," used in the same constitution, is a proper designation of citizens! I close my remarks upon that case with an extract from the 
24
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 age of twentyone years, being a citizen of the United States and a citizen of the county
wherein he may offer lis 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. Sanford, 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 slavehis 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, he 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 abate 
25
ineiit to the jurisdiction of the court; tlhus, 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
MIissouri, for thlat, to wit, the said plaintiff, Dred Scott, is not a citizen of the State of Missouri, as alleged in his declaration, [not because lie was not born there, and born free, but] because he is a negro
of African descent; his ancestors vere of pure African blood,  and
were brought into this count,ry and sold as negro slaves, and this the
said Sandford is ready to verify.  Wherefore he prays judg,ment
whether this court can or will take further cognizance of the action
aforesaid."  To this plea the plaintiff demnurredcl, atnd 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 bad jurisdiction of the cause.
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 favori of the defendant.
And thereupon the plaintiff broughlt the case up to the Supreme Court
bv writ of error.
The power of the Supreme Court over the proceedings and judgmenits 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 belowv consist in the illegal assuinption of
power to hear and determine the mnerits of a case not within its jurisdiction, of course the court above will correct that error, by setting
aside \whatever may have been done by that usurped authority. And
in doing this the court above has no more 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.
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
3
...:: I'. 
26
the merits of the case, was  silmply void, because done co,'am  gOe
Pleas i-n aba,teiment were never favorites \vith thle courts in 1ngland
or America.  Lord Coke tells us tlhat they must be''cert'ili to a cer tsini ijtent. in every pt rticular," and in practice they are  dlvays
dealt wiith very strictl v. When, therefore, the Supreme Court aflirmed
the plea in abatement in this case, I assume that it is affirmed, in
rmanli-er and form, as written, and not othernvise.  And this not mrerelv
because pleas in abatement are alwavs considered stricti legis? but
also, and chiefly, because the decision tends to abridge the valuable
rights of persons natural-born in the country, whichl rights otught not
to be impaired, except upon the clearest evidence of fact  ndi lxvaw.
Takling the plea, then, strictlv as it is written, the persons wvlo are
excluded by this judgment from being citizens of Missouri mnust b1)(
negrooes, not mulattoes nor mestizos, nor qtuatdroons.   Thlley innust be
of zdi./icU) descent, not Asiatic, even thlough they come of the bl)(ckest
Mtala-s in southeastern Asia.   They must have had accesto)s,  (yet
that mmay be doubtful, if born in slavery, of putative p)arents, wlho
were slaves, and bei-ng slaves, incapable of contrtactingi matrilmony,
and therefore every child must needs be a bastard, and so, I)by the
coiimmon law, enlitsfilius, and ilncapable of ancestors.)  his ancestors
if he had any, must have been of puire Afi'ican blood, not mixed with
the tawny Mloor of Morocco or tlhe dusky Arab of the desert, bothi of
whlnom had their orig'in in Asia.  They must have beeii br)-oigit to tllis
country, not come voluntarily; and sold, not kept by the importer for
his own use, nor given to his friends.
In this argument I raise no question upon tlhe leg'al validity of the
judg,rnent in Scott vs. Sandford.  I only insist that the judg'ment iii
that case is limited in lawi, as it is, in fact, limited on the face of the
record, to the plea in abatement; and, consequently, tlhat wiiaitever
was said in the long  course of the case, as reported, (240 p)g,,es,)
respecting the legal merits of the case, aud respecting any supposed
legal disability resulting from the mere fact of color, thloug,h entitled
to all the respect whvich is due to the learned and up)right sources
from which tl-he opinions come, was "deleor.s t(e recor(1,":ind of no
authority as a judicial decision.
To show that, notwithstanding all that was said upon otle)r subjects,
the action of the court wvas strictly confined to the plea inI abatement,
I copy the judgment:
,:::.: I.1.::
. I. I.,.. 
27
"Upon the wvhole, therefore, it is the judgment of this court that
it  bppears by the record before us that the plaintiff in error is not a
citizen of Missouri, i? the secse in wvhich that vwor(l is used in the Con,stitit,ion, an(.d that tle circuit court of the United States, for that
irea,tson, Ad lo j'it,isdictio( i in the case, and could give no judgment in it.
Its judg'imeiit foir tlhe defendant must, consequently, be reversed, and
a   mandaiitte issued, directing the suit to be dismissecdfor vant ofjuiris(!ictio~z."n
Aiid now', upoi the wvhole nmatter, I give it as my opinion that the
./acc m,z of colo', mentioned in your letter, if born in the United
States, is a citizen of tle Tuited States, anid, if otherwise qualified,
is colnpetenlt.   cording to the acts of Cong',ress, to be master of a
vessel eiig(,ed inl the coisting, trade.
All of \whicIl- is respectfully submitted 1)-by your obedient servant,
EDWARD BATES,
Jlttorney General. 
I