Circumventing the Dred Scott Decision: Edward Bates, Salmon P. Chase, and the Citizenship of African Americans

Article excerpt

In August 1863, Brig. Gen. George F. Shepley, military governor of Louisiana, returned from Washington with authority to register African Americans as voters in the selection of delegates for a state constitutional convention. His instructions directed him to register "all the loyal citizens of the United States" in each parish. He also brought from Washington printed copies of an opinion by Attorney General Edward Bates that declared, as summarized rather freely by Secretary of the Treasury Salmon P Chase, "that all free persons born in the United States or naturalized of whatever color, are citizens of the United States." According to Chase, Shepley's instructions, written by Secretary of War Edwin Stanton and President Abraham Lincoln, "have been framed with this opinion in view."(1)

Chase confessed that he had no "reason to believe that the instructions were intended to establish any imperative rule of registration," and that "I do not know whether public sentiment will admit the application of this doctrine in Louisiana."(2) In fact, as Louisiana's Unionists held their constitutional convention and framed terms for the state's reorganization, black voters did not receive the franchise. Beyond the immediate context of the instructions to Shepley, however, Chase relied on Bates's opinion as an official declaration that African Americans had the rights of citizens. "You will remember, doubtless," Chase prompted Lincoln in the spring of 1865, "that the first order ever issued for enrollment with a view to reconstruction went to General Shepley & directed the enrollment of all loyal citizens; and I suppose 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." And a few months earlier in a letter to Maj. Gen. William Tecumseh Sherman, Chase cited Bates's "well considered opinion" and asserted: "In my judgment negroes as men have the same natural rights as other men."(3)

The Fourteenth Amendment, ratified in 1868, finally resolved the issue of citizenship for African Americans. Until then Chase had to rely on other means to assert the notion that black Americans were citizens. The U.S. Supreme Court, and especially Chief Justice Roger B. Taney, had declared to the contrary in Scott v. Sandford, the famous Dred Scott case of 1857.

Chase did more than cite Bates's opinion -- he had actually elicited it. On September 15, 1862, Chase noted in his journal that he "Called on Attorney-General about citizenship of colored men. Found him averse to expressing official opinion."(4) On September 24, two days after Lincoln presented the Emancipation Proclamation to the cabinet, Chase formally requested Bates's official opinion on a citizenship case. Two months later the reluctant Bates replied in the form of a long letter to Chase (see Documents 5 and 6 below).

Although his name did not appear either in Chase's official request to Bates or in the attorney general's opinion, a key figure in the test case -- the individual whose citizenship was technically at issue -- was David M. Selsey. During the summer of 1862, the Revenue Service steamer Tiger inspected vessels bound out from Perth Amboy, New Jersey, to other ports along the coast. On August 8, the commander of the Tiger Capt. Francis Martin, detained the schooner Elizabeth & Margaret of New Brunswick, New Jersey, because its master -- Selsey -- was "a colored man" (Document 1). Under the provisions of a 1793 law regulating the coasting trade, licensing of a vessel required an attestation that its master was a U.S. citizen.(5) Martin referred the matter to John Laurence Boggs, collector of customs at Perth Amboy.(6) On August 11, Boggs, noting that blacks could not be citizens according to the outcome of the Dred Scott case, asked Chase for instructions (Document 2).

According to Boggs, Selsey had worked as a master in the Perth Amboy district for more than twelve years and was one of "some eight or ten" African American skippers in the vicinity (Document 2). …