Article 4, Section 2, Clause 1
William Wirt, Rights of Free Negroes in Virginia7 Nov. 18211 Ops. Atty. Gen. 506
Sir: The question propounded for my opinion on the letter of the collector at Norfolk is, "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?"
I presume 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; otherwise there will arise a vagueness and uncertainty in our laws, which will make their execution, if not impracticable, at least extremely difficult and dangerous. Looking to the constitution as the standard of meaning, it seems very manifest that no person is included in the description of citizen of the United States who has not the full rights of a citizen in the State of his residence. Among other proofs of this, it will be sufficient to advert to the constitutional provision, that "the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States." Now, if a person born and residing in Virginia, but possessing none of the high characteristic privileges of a citizen of the State, is nevertheless a citizen of Virginia in the sense of the constitution, then, on his removal into another State, he acquires all the immunities and privileges of a citizen of that other State, although he possessed none of them in the State of his nativity: a consequence which certainly could not have been in the contemplation of the convention. Again: the only qualification required by the constitution to render a person eligible as President, senator, or representative of the United States, is, that he shall be a "citizen of the United States" of a given age and residence. Free negroes and mulattoes can satisfy the requisitions of age and residence as well as the white man; and if nativity, residence, and allegiance combined, (without the rights and privileges of a white man,) are sufficient to make him a "citizen of the United States" in the sense of the constitution, then free negroes and mulattoes are eligible to those high offices, and may command the purse and sword of the nation.
For these and other reasons, which might easily be multiplied, I am of the opinion that the constitution, by the description of "citizens of the United States," intended those only who enjoyed the full and equal privileges of white citizens in the State of their residence. If this be correct, and if I am right also in the other position--that we must affix the same sense to this description when found in an act of Congress, as it manifestly has in the constitution--then free people of color in Virginia are not citizens of the United States in the sense of our shipping laws, or any other laws, passed under the authority of the federal [Volume 4, Page 496] constitution; for such people have very few of the privileges of the citizens of Virginia.
1. They can vote at no election, although they may be freeholders.
2. They are incapable of any office of trust or profit, civil or military.
3. They are not competent witnesses against a white man in any case, civil or criminal.
4. They are not enrolled in the militia, are incapable of bearing arms, and are forbidden even to have in their possession military weapons, under the penalties of forfeiture and whipping.
5. They are subject to severe corporal punishment for raising their hand against a white man, except in defence against a wanton assault.
6. They are incapable of contracting marriage with a white woman, and the attempt is severely punished.
These are some only of the incapacities which distinguished them from the white citizens of Virginia; but they are, I think, amply sufficient to show that such persons could not have been intended to be embraced by the description "citizens of the United States," in the sense of the constitution and acts of Congress.
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 any oath of allegiance. He is not required or permitted to take any such oath; the allegiance which he owes is that which a sojourning stranger owes--the mere consequence and return for the protection which he receives from the laws.
Besides the general reasons which I have advanced for the exclusion of free negroes and mulattoes in Virginia from the description of "citizens of the United States," under the constitution and laws of the Union, there are special reasons in support of that exclusion with regard to the command of vessels. Under our laws, such persons are not competent witnesses to affect, by their oaths, the life or property of a white man; yet if, by the constitution and laws of the United States, they are citizens competent to the command of vessels, they become clothed with all the duties, powers, and authority of masters of vessels; and, among them, with the competency of affecting by their oaths, protests, &c., the property of white men, insurers, owners, freighters, and of the government itself; of which various instances under our laws, as well as under the maritime law generally, will immediately occur to you. Now, it could never have been the intention of Congress, in requiring that the master of a vessel should be a citizen of the United States, to create a citizen by the assumption of that employment, and clothe the man with rights and privileges of citizenship, which he did not previously possess. The act looked only to those who were previously citizens, and to whom alone it confines the right of entering on the employment.
In addition to these considerations, I may observe, with the collector, that Congress itself has recognised the distinction between citizens of the United States and persons of color, natives of the United States, in several instances; e.g., the 1st section of the act of 3d March, 1813, "for the regulation of seamen on board the public and private vessels of the United States;" and the 3d, 5th, 6th, and 7th sections of the act of March 1, 1817, "concerning the navigation of the United States."
Upon the whole, I am of the opinion that free persons of color in 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.
The Founders' Constitution
Volume 4, Article 4, Section 2, Clause 1, Document 16
The University of Chicago Press