The Passport in America: The History of a Document (26 page)

In the decade between the 1856 act and the Fourteenth Amendment, the ability to document citizenship in a period of racial contestation continued to provide a challenge to the attempts to establish the passport as a certificate of citizenship. This called into question not only the effort to form an exclusive relationship between the passport, citizenship, and protection, but also the notion that a passport was primarily a certificate of citizenship.

In 1859 Sarah Remond, a thirty-three-year-old “freed person of color,” arrived in London with a U.S. passport.
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In the two years she spent in London, Remond delivered more than forty-five antislavery lectures as she studied for a degree at Bedford College for Ladies. Neither of these activities attracted the attention of major U.S. newspapers. What did get their attention was the refusal of a State Department official in London to verify her U.S. passport for a trip to France (this act of verification was referred to as a visa, and in practice could be done by any foreign official; in this case it did not have to be either a U.S. official or a French official). The
New York Times
approvingly reprinted Remond’s indignant letter to the official who had refused to recognize her passport and, therefore, her claim to be a citizen; the letter had already been published in English newspapers generating much criticism of the United States. The article commented: “On the face of the passport there could be no question as to the right of Miss Remond to demand a visa from the American representative. But the Secretary at the Legation seems to have been instructed to take his cue from the face of the bearer rather than from that of the document.”
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The
Times
was to some extent correct. While the State Department “expected that a person… will not omit to mention in the application that he or she is a person of color,” officials were aware that this trust could be abused.
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Correspondence prior to the passage of the 1856 act, suggests that “persons of color” presented passports frequently enough for rejection to have become, if not policy, at least an acceptable response.
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If a “person of color” presented a passport, department officials remained confident that, as with Remond, “such a passport would not be countersigned by the Ministers of the United States abroad [and therefore] it would be of little or no use to the
bearer.”
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The latter was not necessarily the case if the bearer intended to use passport to make a point in debates over African American citizenship.

The State Department had received a passport application on Remond’s behalf from a notary public in her hometown of Salem, Massachusetts (
figure 8.1
). Rather than use a preprinted application form, the notary applied for the passport with a one-page handwritten affidavit that he, Remond, and a witness signed. While the application did not mention Remond’s race she argued in her letter of protest to the London legation that the notary “saw my
color
which is very
apparent
.”
⁵⁶
In the affidavit the notary had described her hair, complexion, and face as dark; in contrast, the official in London described her as “dark mulatto with wooly hair and negro features.”
⁵⁷
The affidavit subtly addressed Remond’s citizenship status. The notary, in his cover letter and at the beginning of the affidavit, carefully stated that he knew her to be a citizen of Salem; the affidavit recorded that Remond “made oath that she is a native citizen of the United States.” In accordance with passport regulations, the affidavit also included a statement from a citizen who knew Remond. In contrast to Remond, the notary identified that person, Samuel Andrews, with the phrase, “known to me as a native citizen of the United States.” For his part, Andrews stated he was well acquainted with Remond but limited his statement about her citizenship to the comment that he “verily believed that she was born in Salem.”
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The passport issued as a result of this application identified Remond as a citizen when she legally could not be one. In a world of few documents and limited administrative reach, the State Department still had to trust the honesty of local officials and applicants. Although her application thus constituted an abuse of this trust, somewhat ironically the
Times
used Remond’s experiences to make a case for the passport as something like a letter of introduction that would vouch for an individual’s character. The editorial acknowledged that Remond was not actually a citizen and therefore moved the issue away from an explicit statement about race and U.S. citizenship to a critique of the post-1856 passport. The
Times
defined the passport as “simply a declaration on the part of the authorities of the country to which the holder belongs that his name is Brown or Smith, and that he is not a fugitive from justice.” Described as such, the passport should only be a document to introduce to officials abroad those individuals who sought their assistance. The editorial writer further proclaimed with confidence that “no European government cares a straw whether they are [citizens] or not.” Therefore, “this solemn refusal on the part of a great nation to grant a valid document

Figure 8.1. Affidavit in support of Sarah Remond’s passport application, 1858 (National Archives).

of this kind to an unprotected colored female on her travels is something not only unjust but very ridiculous.”
⁵⁹

The special certificate the State Department issued “free persons of color” seems to be the type of document suggested in these comments (
figure 8.2
). However, while the
Times
(perhaps strategically) viewed the passport

Figure 8.2. “Certificate” issued to a freed man of color, 1863 (National Archives).

as simply a letter of introduction and protection the State Department was becoming adamant that its passport was primarily a certificate of citizenship; a claim that could now be supported by the 1856 act. A few months after the 1856 act (and a few months before Taney’s
Dred Scott
opinion denied citizenship to “colored persons”), a group of eleven black minstrel performers were refused passports in Washington on the grounds that they were not citizens of the United States, despite their birth on U.S. soil and their being “highly respectable, and worth considerable property.”
⁶⁰
The assistant secretary of state explained the denial on the grounds that the constitution prevented the applicants from being regarded as citizens; therefore he argued when beyond the jurisdiction of the United States they could not claim the full rights of citizenship a passport represented. As had been practice prior to the 1856 act he offered to issue what he labeled a “certificate” that would state the bearers were born in the United States and “that the Government thereof would regard it as its duty to protect them if wronged by a foreign government, while within its jurisdiction for a legal and proper purpose.”
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The claim to birth while not grounds for “full” citizenship did apparently entitle individuals to protection regardless of their skin color.

Half a dozen years later, Attorney General Edward Bates endorsed the type of document offered to the minstrels, but like the
Times
identified it as a passport. He “confidently believe[d] that there is not a government in Europe which, in view of our laws of citizenship, would question the validity of a passport which declares upon its face that the bearer is a free natural-born inhabitant of the United States”; Bates used this claim within a larger argument that a “free man of color,” if born in the United States, was a citizen of the United States.
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He deliberately referred to it as a “passport” because he believed that, in substance and fact, it was. Bates supported this belief with the argument that the 1856 act did not prescribe any form for a passport, and as these documents were letters from the secretary of state to foreign officials, requesting safe passage, they fit the definition of passport. Therefore, contrary to the intentions of the 1856 act, but in the context of disputes over African American citizenship, the
Times
and Bates both downplayed the importance of the verification of citizenship as the primary function of a passport. Instead they viewed it as a document that established a relationship between the bearer and a recognized authority, and on this ground offered individuals protection abroad and made them known to whomever they might encounter on a journey.

In the same opinion Bates contended U.S. citizenship lacked a clear legal definition. He argued he could find “no such definition, no authoritative
establishment of the meaning of the phrase [citizen of the United States], 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.”
⁶³
The most recent attempt to offer clarity to citizenship law had been Chief Justice Taney’s landmark Dred Scott vs. Sandford ruling in 1857.
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Taney argued that African Americans were not citizens. His ruling was largely based on the argument that they could not be citizens because they were not treated as citizens; the State Department’s refusal to issue passports to free African Americans provided part of Taney’s evidence for this argument. Perhaps encouraged by Taney’s ruling Secretary of State Lewis Cass declared the passport had always been a certificate of citizenship and therefore “never since the foundation of government [has it] been granted to persons of color.”
⁶⁵
In 1866, Congress passed the Fourteenth Amendment, which defined national citizenship to include “all persons born or naturalized in the United States” and prohibited states from violating the privileges of citizenship without due process of law. In practice, this resulted in the contested citizenship of black men both at a legal level (frequently in terms of disputes between states and the federal government) and in nonlegal situations.
⁶⁶
But in terms of the U.S. passport, the clarification of the citizenship status of African Americans seemed to reduce, if not completely eliminate, the privileging of the face of the bearer over the face of the document; an African American could now legally be a U.S. citizen. The contested category of African American citizenship had affected initial State Department attempts to consistently establish the passport as a document that could only be issued to citizens. For at least two decades prior to 1856 the State Department had sought to make that its policy without any legal backing. But with on-going disputes over who could be a citizen, the department continued to respond to those debates with changes in issuance policy. Two years before the passage of the Fourteenth Amendment granted African Americans citizenship the State Department passport clerk informed an attorney in a letter published in anti-slavery newspapers that in terms of passports “there is no distinction made in regard to color.” Although the passport was purportedly a certificate of citizenship it could at this moment seemingly be granted to people whose citizenship status at best was dubious.
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