44 Me. 516

OPINION OF JUDGE HATHAWAY.

Supreme Judicial Court of Maine.

March 26, 1857

To the Honorable, the Senate of Maine:

In obedience to the preceding order, I have considered the question proposed to the court, and herewith transmit my opinion, as one of the justices thereof.

By the constitution of Maine, article two, section one:

" Every male citizen of the United States, of the age of twenty-one years and upwards, excepting paupers, persons under guardianship and Indians not taxed, having his residence established in this state, for the term of three months next preceding any election, shall be an elector for governor, senators and representatives, in the town or plantation where his residence is so established."

Hence the answer to the question proposed must depend upon the result of the inquiry, whether or not such " free colored persons of African descent" are " male citizens of the United States of the age of twenty-one years and upwards," not being paupers or persons under guardianship. Citizens of the United States are those persons who are native born such, and those children of citizens who, although born abroad, are by law considered as native born--and aliens who have been naturalized under the laws of congress--and those who become such by treaty.

If aliens, free colored persons of African descent cannot by our laws, become citizens of the United States, for the laws of congress, concerning naturalization, grant that privilege to none but " free white persons" --and congress has exclusive power to legislate upon that subject.

The question, therefore, is merely whether or not such free colored persons are native born male citizens of the United States, or those who have become citizens by treaty stipulations.

In the case of Dred Scott v. J. F. H. Sandford, the Supreme Court of the United States has recently decided that negroes of African descent, whose ancestors were of pure African blood, and were brought into this country and sold as negro slaves, were not citizens of the United States.

In answering the question proposed to the court, it is necessary to consider the legal effect of that decision.

By the federal constitution, article one, section two:

" No person shall be a representative who shall not have been seven years a citizen of the United States."

And by article one, section three:

" No person shall be a senator who shall not have been nine years a citizen of the United States."

By article one, section eight:

Congress has power " to establish an uniform rule of naturalization."

And by article four, section two:

" The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states."

By these last two provisions of the constitution, and the laws of congress, upon the subject of naturalization, passed in pursuance of the power granted--the laws concerning citizenship in the United States, and in each state, were made entirely uniform for it is certain, that in the sense in which the word " citizen " is used in the federal constitution " citizen of each state, " and " citizen of the United States, " are convertible terms; they mean the same thing; for " the citizens of each state are entitled to all privileges and immunities of citizens in the several states," and " citizens of the United States" are of course, citizens of all the United States.