Simple Things

SIMPLE THINGS By: Melissa B. Carrasco

Egerton, McAfee, Armistead & Davis, P.C.

THE LEAST INFLUENTIAL PERSON

According to one journalist, Edward Bates was “a small white-haired man, not noticeable in appearance, with a good head, sharp features, and pleasant face well-fringed with gray whiskers. He is not meddlesome in public affairs, lives retired, and next to Montgomery Blair, is the least influential man in the cabinet.”1 If that description strikes you as odd, it should, given everything Bates had accomplished by that point in time.

Bates was twenty-three years old when he was admitted to practice law in the Territory of Missouri—before law school and bar examinations were mandatory.2 By the time he was twenty-seven, he was elected the Missouri Attorney General, and helped to draft the constitution of the new state.3 Then, he was elected to the House of Representatives as Missouri’s first U.S. Congressman.4 But, Bates lost his bid for reelection—mainly because he refused to join the Republican party.5 So, he went back to practicing law, raising his seventeen children, and even serving a few years as the judge of the St. Louis land court.6

He was also rather outspoken against slavery, but he stopped short of advocating for full citizenship of African-Americans. He was considered a “moderate” at the time who (people thought) could stop the expansion of slavery without driving a wedge with the South.7 By 1859, he was on the list of the Twenty-one Prominent Candidates for the Presidency of 1860 published by D.W. Barlett.8 He also made it to John Savage’s Our Living Representative Men Prepared for Presidential Purpose published in early 1860.9 In case it matters to anyone Abraham Lincoln did not actually make either list. But, a few months later, there they both were in Chicago at the Republican Convention vying for the Presidential nomination.10

If you want a dissection of the 1860 Republican Convention, you will have to look elsewhere (although it was a pretty fascinating event). We all know Bates didn’t get the nomination and Lincoln did. After Lincoln was elected President, he appointed Edward Bates to serve as his attorney general, and Mr. Bates went to Washington.11 It was 1861. Within a month, the Southern states had seceded, Confederate troops would fire upon Fort Sumter, and the nation was at war.

In those days, the office of the Attorney General was rather small. Bates only had six staff members to assist him in his duties, and that included messengers (our modern day runners).12 If Bates was the “least influential man in the cabinet” it was on purpose. “Bates restrained himself to advising the President and the department heads when they had a course of action before them; he would not give general advice or express general legal views on other problems.”13

It must have been difficult for him to be so restrained. After all, one of his sons was serving in the Union army. Another son was serving with the Confederates. A third son was training at West Point to join the army.14 The ongoing conflict was very personal for Bates, but he never lost sight of the importance of his role—to answer the legal question in front of him.

In 1862, a very important legal question was sent to him. Secretary of the Treasury S.P. Chase asked for a formal opinion as to whether an African Americans was illegally captaining a U.S. commercial vessel.15 At the time, only U.S. citizens could command an American vessel; therefore, the real question was whether a person was legally incapable of being a citizen solely because he was African American.16 Keep in mind that the U.S. Supreme Court had already answered that question in the negative five years earlier in Dred Scott v. Sandford (a case that started in Bates’ home state of Missouri),17 and the 14th Amendment wasn’t even on the horizon.

It was a really tough question, and Bates’ analysis was painstaking, starting with the U.S. Constitution, analyzing the constitutions of various states and prior Attorney-General opinions, reaching back to the ancient Roman and Grecian concepts of citizenship, and dismantling what everyone believed about the Dred Scott opinion. Finally, the celebrated case of Scott v. Sandford, 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.18

Instead, Bates opined that Dred Scott was about the jurisdiction of the trial court, not the merits of its decision.19 Bates interpreted Dred Scott to mean that because the lower court had no jurisdiction over the case, any judgement was void. The rest was just dicta. If you can make it through the 200+ pages of the Court’s opinion, you will find Bates was right.

In contrast, Bates’ opinion to answer Secretary Chase’s question is only 27 pages long. It is definitely worth the read. In the end, Bates concluded: 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.20

The United States’ top attorney and the “least influential man in the cabinet” provided the analysis for determining that being born in the United States made you a citizen regardless of color or race.

On January 1, 1863, President Lincoln issued the Emancipation Proclamation. Bates contributed to that document as well—providing a few edits to clarify the President’s legal authority to issue the Proclamation.21 Others may have thought he was the least influential man in Lincoln’s cabinet (next to Montgomery Blair), but Attorney General Bates was influential when he needed to be. He was influential not by doing anything grandiose, but by doing the simple things that we do every day: identify the issue, conduct thorough legal research, analyze the problem, and reach a conclusion.

1 Mr. Lincoln’s White House, Cabinet and Vice Presidents: Edward Bates (793-1869), http://www.mrlincolnswhitehouse.org/residents-visitors/cabinet-vice-presidents/ cabinet-and-vice-presidents-edward-bates-1793-1869/, last visited Dec. 10, 2022. 2 House Divided, Bates, Edward, available at https://hd.housedivided.dickinson.edu/ node/5051. 3 University of Virginia Miller Center, Edward Bates (1861-1864), available at https:// millercenter.org/president/lincoln/essays/bates-1861-attorney-general. 4 U.S. Dept. of Justice, Office of the Attorney General, Edward Bates, https://www. justice.gov/ag/bio/bates-edward, last visited Dec. 10, 2022. 5 House Divided, supra n. 2. 6 University of Virginia Miller Center, supra n. 3. 7 Encyclopedia Britannica, Edward Bates, available at https://www.britannica.com/ biography/Edward-Bates. 8 National Park Service, Lincoln Home, The Cooper Union Address: The Making of a Candidate, available at https://www.nps.gov/liho/learn/historyculture/aboutcooper. htm, last visited Dec. 10, 2022. 9 Id. 10 Thomas W. Marshall, Edward Bates, DAB vol 2, 48-49, available at https://www2. tulane.edu/~sumter/Bates.html, last visited Dec. 10, 2022. 11 Id. 12 Mr. Lincoln’s White House, supra n. 1. 13 Id. 14 Id. 15 Opinion, Attorney General’s Office, Nov. 29, 1862, available at https://archive.org/ details/opinionattorney01bategoog/page/n8/mode/2up?view=theater. 16 Id. 17 Dred Scott v. John F. A. Sandford, 60 U.S. 393 (1857). 18 Opinion, Attorney General’s Office, supra n. 15, p. 24. 19 Id. p. 25. 20 Id. at pp 26-27. 21 See Edward Bates, Memorandum on the Emancipation Proclamation (Dec. 31, 1862), available at https://www.loc.gov/resource/mal.2081800/?sp=1.