Citizenship [Part 3]
~ This entry is part of my project of identifying, compiling, and editing the complete written and spoken works of James McCune Smith (1813-1865) in association with Northumbria University and funded by the British Academy. ~
Title: Citizenship [Part 3]
Source: The Anglo-African Magazine, May 1859, pp. 144-150 (In Hathi Trust)
Text:
Citizenship
––––
BY JAMES M’CUNE SMITH.
[Continued]
To return to the meaning of the word Citizen under Roman law; the citizen of Rome, at first the actual dweller in that city, was subsequently the individual member of that state, residing in Italy, and finally in the provinces; certain rights were always reserved to the actual dwellers in Rome, but the term citizen with its essential rights was applied even to foreign towns, MUNICIPIA.[1]
The Roman Citizen had two classes of rights, the private rights IUS QUIRITIUM, and the public rights IUS CIVITATIS.[2] As none of these rights could be exercised by any but Roman citizens, the possession of all or any of them constituted citizenship on the part of the individual holding them.[3] And once a Roman Citizen, the individual could not by any process be deprived of his citizenship,* against his own will. If the rights of a citizen were taken from any one either by way of punishment or for any other cause, some fiction always took place. Thus, when citizens were banished, they did not expel them by force, but their goods were confiscated, and themselves were forbidden from the use of fire and water (iis igne et aqua inderdictum est) which obliged them to repair some foreign place.[4]
The JUS QUIRITIUM or private rights of Roman citizens, were 1. Jus Libertatis, the right of liberty; 2. Jus Gentilitatis et Familiae, the right of family; 3. Jus Connubii, the right of
* Cicero pro Dom. 29, 30,[5] pro Caecin, 33.[6]
marriage; 4. Jus Patrium, the right of a father; 5. Jus Dominii Legitimi, the right of legal property; 6. Jus Testamenti et Haereditatis, the right of making a will and of succeeding to an inheritance; 7. Jus Tutelae, the right of tutelage or wardship.[7]
Let us take a glance at these private rights of Roman citizens, and make a comparison of them with the rights enjoyed by the blacks of the United States.
1st. Jus Libertatis, the ‘right of liberty.’ This included ‘liberty from the power of masters, (dominorum) from the severity of magistrates, the cruelty of creditors, and the insolence of more powerful citizens.[8]
The free blacks, in all the free states, and in the slave states (except where prohibited by statute law) have ever enjoyed this right, and their mode of redress, when wronged, in regard to it, are the same as that guaranteed to other citizens.
2nd. JUS GENTILITATIS ET FAMILIAE; ‘the right of family’[9] is especially proscribed in Art. 1, Sec IX, clause 7, of the Constitution of the United States.[10]
3rd. JUS CONNUBII; ‘the right of marriage.’ No Roman citizen was permitted to marry a slave, barbarian, or a foreigner, unless by permission of the people.* ‘CONNUBIUM’ est matrimonium inter cives; inter servos autem, aui inter civem er oerigrinae conditionis homium ― non est Conubium, sed CONTUBERNIUM.† By the laws of the Decemviri intermarriages between the Patricians and the Plebeians were prohibited,[11] just as in Massachusetts, intermarriages between whites and blacks were prohibited, but this restriction did not, in Rome, destroy the citizenship of the plebeian, neither could it in Massachusetts, as Judge Taney affirms destroy the citizenship of the negro. This restriction was soon abolished in Rome,‡ as has been done in Massachusetts.[12]
4th. JUS PATRIUM; ‘the right of the father.’ Children, under Roman law, were the absolute slaves of their parents, (citizens) who possessed even the power of putting them to death. And the form of setting children free from this rule was very similar to that of emancipating a slave. The father signified,
* Liv. XXXVIII. 36.
† Boeth. In Cic. Top. 4.
‡ Liv. 4, 6.
before a competent magistrate, with the consent of his son, that he freed him from his power by saying, ‘Hunc sui Juris esse patior, meaque manu mitto.’[13] The same usage obtains in the United States, where the father (whether white or black) is free, and owns the mother of the child. The free blacks have the same parental rights which common law gives to white citizens.
5th. JUS DOMINII LEGITIMI; ‘the right of property.’[14] The right to hold and convey real estate has ever been enjoyed by free blacks in these United States, except in a few of the slave states where it has been withheld by special statute. In some if not all the states, ALIENS do not enjoy this right, except by special statute.
6th. JUS TESTAMENTII ET HAERDITATIS; ‘the right of making a will and of succeeding to an inheritance.’ None but Roman citizens (sui juris) could make a will, or be witnesses to a testament, or inherit anything by testament.*[15] The free blacks throughout the United States enjoy this right except in some of the slave states, where inhibited by statute law, the prohibition in most instances relating to the case only where the testator is white.
7th. JUS TUTELAE; ‘the right of tutelage or wardship.’ Any father of a family might leave whom he pleased as guardians (tutores) of his children.[16] This right is also enjoyed by the free blacks of the United States, with exceptions similar to those just mentioned.
We will next look at the PUBLIC RIGHTS OF ROMAN CITIZENS. These were Jus Census, Militiae, Tributorum, Suffragii Honorum, et Sacrorum.[17]
1st. JUS CENSUS; ‘the right of census.’ Two magistrates were first created A. U. 312, for taking an account of the number of the people, and the value of their fortunes; (censui, agendo) whence they were called CENSORES.[18] And this account was taken for the basis of taxes. Other duties pertained to the office, but these only relate to the United States, and therefore come within our present subject. Not only the free blacks, but even the SLAVES of the United States are included amongst those to whom the Constitution extends the JUS CENSUS; for all are enumerated as the basis of Representation,[19]
* Cic. pro Arch. 5. Dom. 32.
† Liv. 1. 34.
and, if need be of taxation.* Among the Romans, slaves as well as aliens were excluded from the JUS CENSUS.[20]
2. JUS MILITIAE; ‘the right of serving in the army.’[21] The Constitution having Art. I, Sec. 8, Clause 16,[22] delegated to Congress the organization and regulation of the army, Congress has restricted the militia and regular army of the United States to free, able-bodied white citizens;[23] aliens however are enlisted, and have fought most of our battles. In several of the states, however, colored men were enlisted in the war of 1812.[24] In Charleston, South Carolina, there was a company of colored men called the ‘Browns,’ in which Mr. John Mitchel, late of the city of New York was a subaltern.[25] In Virginia, in 1777, during the Revolution, in an Act for regulating and disciplining the militia, (Statutes at large, Vol. IX, p. 267.) it had been enacted that ‘for forming the “citizens” of this commonwealth into a militia’ ― ‘all free male persons between the ages of sixteen and sixty’―‘shall by the commanding officer of the county in which they reside, be enrolled or formed into companies’―‘the free mullatoes [sic] in said companies to be employed as drummers, fifers and pioneers;’[26] and a subsequent provision was made (Same, p.280) enlisting free negroes for actual service.[27]
3. JUS. TRIBUTORUM; ‘the right to be taxed’[28] is of course equally enjoyed by the free blacks of all the States of the Union: it is a mark
* They (the framers of the Constitution) had not then thought that taxation on all the imported goods was to be regarded as a blessing. On the contrary they expected that the expenses of government would be defrayed by direct taxation. Then it became an important question, How shall taxation be appointed among the people? ‘Why,’ said men of the North, ‘according to population; and let everybody white and black be enumerated.’ ‘No,’ replied the South ‘for here are our Southern slaves who do not produce as much as your laborers. We ought not to be taxed according to population.’ And not only was there a compromise made on this subject, but they were ready to have their representation diminished by two fifths of their slaves, which, was not much thought of at the time, inasmuch as they obtained as a recompense what was esteemed by them as a great boon, namely, the taxation also in proportion to their numbers, omitting two fifths of their slaves. (Memoirs, speeches, and writings of Robert Rantoul, Jr., p.738)[29]
of citizenship with which the Slave states have showered upon their free blacks with a most liberal hand.
4. JUS SUFFRAGII; ‘the right of voting.’[30] In a majority of the States at the time of the adoption of the Constitution, free blacks exercised the right to vote, and were therefore intitled to that right in a majority of the states, including Virginia and North Carolina.[31]
5. JUS. HONORUM; ‘the right to hold office,’[32] although they have held but few public offices,[33] there is no legal reason why a free black may not hold office in many of the States, none why he may not become President of the United States.
JUS. SACRONUM; ‘the right to minister in sacred things.’[34] This right is enjoyed by the free blacks throughout the United States, under certain restrictions, in the slave states looking to the possibility of an insurrection from this source.
Such are the rights which were attached to citizenship among the Romans. Such are the rights which constitute citizenship as expressed in the Constitution of the United States, because, in the absence of any definition of the word in that Constitution, the word must bear the meaning which language itself attached to it under like circumstances, to wit, when it expressed the relation of the individual to the general government. As in Roman polity, the possession of any one of these rights constituted the possessor a citizen of the Republic, so it might be safely argued, that in these United States, the possession of any one of these rights confer citizenship on the possessor. For example, according to Justinian, a man emancipated became free as his emancipator, that is a citizen, immediately.[35] According to Cicero,* when a slave was enrolled in the census (by consent of his master,) he became free, that is a citizen. Hence, when the framers of the Constitution, nearly all of them slaveholders, ordained the enrollment of slaves (if they were slaves, who were mentioned in the three fifths clause) in the census, actually manumitted them and gave them the right of citizenship.
But in regard to the free blacks of the United States, there need be no interposing
* Cic. Caecin. 34.599.[36]
inferences. Their right to citizenship is demonstrated as clearly as the meaning of the word itself. Enjoying each one, enjoying all the rights which constitute citizenship, they must be citizens of the United States. Their rights to citizenship of the United States is based upon a firmer foundation than legislative precedents, or judicial decisions, it is based upon the very meaning and definition of [the] term citizen; and in order to impeach that right it will be necessary to blot out from history the annals of lofty Rome, to erase from language the word citizen, and to efface from human polity the relation which the individual bears to the State, in a republic. The free blacks are citizens of the United States, under the Constitution thereof: it is, for us, a most excellent Constitution, ‘a better one,’ as Frederick Douglass has well said ‘than would be framed by a Convention held to-day in the United States.’[37] But whatever evil the framers of to-day might do, they could not deprive free blacks of citizenship. Such deprivation is not in the nature of things. The framers of the Constitution, like they who superintended, or rather witnessed the growth of and ideas of citizenship in Rome, could not more help admitted freed men to citizenship than could the bee with his hexagonal eye lenses, avoid building a hexagonal cell.
Relying upon this basis for our claims to citizenship, we blacks may smile at[38] the Dred Scott decision, and the various rulings of the minions of slaveholders, who hold for the time, the Executive power of the General Government. We can safely bide our time: we must enforce a full acknowledgement of our rights in the free States, and thus obtain a stand point from which we can put in practice the glorious principles, which, whether uttered by Robespierre or Gerrit Smith, point out in living light our path of duty.
‘1. Les hommes de tous les pays sont freres, et les different Peuples o’entr’aider selon leur pouvoir comme les citoyens du meme Etat.―2. Celui qui opprime une Nation se declare l’ennimi de toutes.―3. Ceux qui font la querre a’ un Peuple pour arreter les progress la liberti et le droits de l’homme doivent etre poursuivis par tous, non comme des enemies ordinaires, mais comme des assassins et des brigands rebelles.―4. Les Rois, les Aristocrats, les Tyrans (including slaveholders and their abettors) quets qui’ls socent, sont des esclaves revoltes ceontre le Souverain de la terre, qui est le Goure humain, et contre le Legislateur de l’Univers, qui est la Nature.’ (Debates in Con. Hist. de la Rev., France, par M. Cabet. Tome III p. 461.)[39]
NOTE. Professor Woolsey in the New Englander for August, 1857, in his able view of the Classical quotations in Judge Daniel’s opinion on the Dred Scott case seems hardly clear in one point. The term ingenuus not only meant ‘the child of freed persons,[40] as the professor states, it was more especially applied to those who having been free born, (engenui) and subsequently reduced to slavery by sale, (from the father) or otherwise, were finally emancipated: an ingenuus therefore was a free born emancipated slave, a libertinus a slave-born emancipated slave.[41]
[1] See Alexander Adam, Roman Antiquities: Or, An Account of the Manners and Customs of the Romans, ed. Peter Wilson (Collins & Hannay, 1830), 47 (In Internet Archive) and William Smith, ed., Dictionary of Greek and Roman Antiquities, 2nd edn (Boston, 1849), 292, 318–19 (In Internet Archive).
[2] Starting with this line, McCune Smith’s discussion of Roman citizen’s rights starts tracking and quoting from Alexander Adam’s manual on classical Rome so extensively that McCune Smith evidently relied on it heavily throughout. For these classes of rights, see Adam, Roman Antiquities, 48. (In Internet Archive) McCune Smith’s unattributed quotes are not an aberration: long sections of text (including quotes that McCune Smith lifted) from Adam’s Antiquities, first published in 1791, were reproduced verbatim without clear or any attribution in other manuals of the classical world published in this period, including Charles Anthon, A Manual of Roman Antiquities (Harper & Brothers, 1851); Joseph Salkeld, Classical Antiquities, or, A Compendium of Roman and Grecian Antiquities (Harper & Brothers, 1855). But since Anthon, Salkeld, and others don’t include some of the quotes McCune Smith used, he would have been consulting Adam’s manual.
[3] For a discussion of a similar view of citizenship often applied in the nineteenth century, see Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics, with Internet Archive (Oxford University Press, 1978), 64–65.
[4] The fourth and fifth sentences of this paragraph, starting with ‘if the rights of a citizen…’ is a near-verbatim unattributed quote from Adam, Roman Antiquities, 66 (In Internet Archive).
[5] See Cicero’s ‘De Domo Sua’ 29-30 in George Long, ed., M. Tullii Ciceronis Orationes [Cicero’s Orations], vol. 3 (Whittaker and Co., 1855), 391–92 (In Internet Archive). See English translation at Attalus.org.
[6] See Cicero’s ‘Pro Caecina’ 33 in George Long, ed., M. Tullii Ciceronis Orationes [Cicero’s Orations], vol. 2 (Whittaker and Co., 1855), 237–39 (In Internet Archive). See English translation at Attalus.org.
[7] The paragraph, starting with ‘The JUS QUIRITIUM’, is a near-verbatim unattributed quote of the last paragraph in Adam, Roman Antiquities, 48 (In Internet Archive).
[8] The description of this right, starting with ‘from the power…’ is a shortened unattributed quote from Adam, Roman Antiquities, 49 (In Internet Archive).
[9] For the description of this right, see Adam, Roman Antiquities, 50 (In Internet Archive).
[10] See The Constitution of the United States of America, with the Amendments Thereto (House of Representatives, 1857), 10–11 (In Internet Archive).
[11] The description of this right, starting with ‘No Roman citizen…’ and ending with ‘were prohibited,’ is quoted nearly verbatim from Adam, Roman Antiquities, 50 (In Internet Archive). McCune Smith repeated Adam’s citations of Livy and Cicero, including in footnote ‡ for this paragraph.
[12] The Massachusetts state legislature voted to repeal the ban on interracial marriage on 22 February 1843. See ‘Vote on the Intermarriage Law’, Liberator (Boston), 10 March 1843. For the history of the ban and the fight to repeal it, see Louis Ruchames, ‘Race, Marriage, and Abolition in Massachusetts’, The Journal of Negro History 40, no. 3 (1955): 250–73.
[13] See Adam, Roman Antiquities, 50–52 (In Internet Archive). The quote ‘Hunc sui Juris esse patior, meaque manu mitto’ from Justinian appears on p. 52.
[14] See Adam, Roman Antiquities, 52–58 (In Internet Archive).
[15] The first sentence of Adam’s description of this right is quoted verbatim here from Adam, Roman Antiquities, 58 (In Internet Archive). McCune Smith repeated Adam’s citation of Cicero. See Adam’s complete description of this right on the following pages.
[16] The first sentence of Adam’s description of this right is quoted verbatim here from Adam, Roman Antiquities, 62 (In Internet Archive). See Adam’s complete description of this right on the following pages.
[17] This list of public rights is quoted verbatim here from Adam, Roman Antiquities, 63. (In Internet Archive)
[18] The first sentence of Adam’s description of this right is quoted verbatim here from Adam, Roman Antiquities, 114 (In Internet Archive).
[19] See Art.1, Sec. 2, in Constitution of the United States, 3–4 (In Internet Archive).
[20] The census was restricted or mostly restricted to citizens. See Adam, Roman Antiquities, 115 (In Internet Archive).
[21] See Adam, Roman Antiquities, 63 (In Internet Archive).
[22] See Constitution of the United States, 9 (In Internet Archive).
[23] Taney cited the 1792 federal law requiring all ‘free able-bodied white male citizen[s]’ to enlist in the militia in his majority opinion. See Fehrenbacher, Dred Scott Case, 361.
[24] Like many leading African Americans who preceded and influenced him (such as Peter Williams Jr, William Hamilton, and Thomas L. Jennings), McCune Smith regularly cited African Americans’ military service in the War of 1812 as evidence of their Americanness, patriotism, and right to citizenship. See ‘Thomas L. Jennings’, The Anglo-African Magazine, April 1859; ‘Mr. Horace Greeley’s Dislikes’, The Weekly Anglo-African, 10 March 1860; ‘On Deck!’, The Anglo-African, 7 March 1863; ‘Sketch of the Life and Labors of Rev. Henry Highland Garnet’, in A Memorial Discourse; by Henry Highland Garnet, Delivered in the Hall of the House of Representatives, Washington City, D.C. on Sabbath, February 12, 1865 (Joseph M. Wilson, 1865), 21.
[25] This would be John Mitchell, a black tailor in New York City who was born in South Carolina. A fellow parishioner of St Philip’s Church, Mitchell died suddenly on 28 February 1856. See 1850 United States Census, New York, New York County, New York, digital image s.v. “John Mitchell,” Ancestry.com; ‘Died: John Mitchell’, New-York Daily Tribune, 1 March 1856. Mitchell was one of many of McCune Smith’s New York City connections originally from Charleston, South Carolina, where McCune Smith’s mother Lavinia Smith and Aunt Sally (Sarah) McCune had been enslaved before relocating to New York City.
[26] See William Waller Hening, ed., The Statutes at Large; Being a Collection of All the Laws of Virginia, From the First Session of the Legislature, In the Year 1619, vol. 9 (Commonwealth of Virginia, 1809), 267 (In Internet Archive).
[27] See Hening, Statutes at Large, 9:280 (In Internet Archive).
[28] See Adam, Roman Antiquities, 63–65 (In Internet Archive).
[29] The entirety of this footnote except the first sentence and citation is quoted verbatim. See Robert Rantoul, Memoirs, Speeches and Writings of Robert Rantoul, Jr, ed. Luther Hamilton (John P. Jewett and Company, 1854), 738 (In Internet Archive).
[30] See Adam, Roman Antiquities, 65 (In Internet Archive).
[31] In his dissent in Dred Scott, Justice McLean cited three states – New Hampshire, New York, and New Jersey – that clearly gave free black Americans the right to vote. He also pointed out that the Articles of Confederation granted the privileges and immunities of citizens to the free inhabitants of all the states, which voted 8-2 and 1 divided against adding ‘white’ to this provision. (McLean also argued against the idea that citizenship depended on enjoying all rights of citizens, citing provisions in the Constitution that denied the right to hold certain offices from citizens based on age, nationality at birth, and other factors, which could potentially undermine the case McCune Smith made in this essay.) See ‘Dred Scott v. Sandford, 60 U.S. 393 (1856)’, Legal resource, Justia Law, 574, 576, 582–83, https://supreme.justia.com/cases/federal/us/60/393/. Fehrenbacher argued that ‘the evidence is that by implication, sufferance, and inadvertence [the founding fathers] often classified [the free Negro] as a citizen,’ including by not denying suffrage to black Americans. See Fehrenbacher, Dred Scott Case, 66.
[32] See Adam, Roman Antiquities, 65 (In Internet Archive).
[33] On previous occasions. McCune Smith cited black Americans who held public offices, however minor, to show that it wasn’t legally or socially impossible for them to do so, even if it was currently difficult to obtain them. In a published address to the people of New York State, McCune Smith observed: ‘Colored men hold offices in the gift of the people in Essex county, in this State; have refused office in Oneida, and have been nominated, and received a fair share of votes for the highest offices in the gift of the State.’ See ‘The Colored Convention - Adjournment Sine Die’, New York Daily Herald (New York, New York), 3 April 1851; ‘Address to the People of the State of New York’, New York Herald (New York), 29 January 1852.
[34] See Adam, Roman Antiquities, 65–66 (In Internet Archive).
[35] See Lib. 1 Tit. 5 and explanatory notes in Thomas Collett Sandars, The Institutes of Justinian, 2nd edn (John W. Parker and Son, 1859), 92–94 (In Internet Archive).
[36] See ‘quum ii qui in servitute justa fuerunt censu liberentur, eum qui, quum liber esset, censeri noluerit, ipsum sibi libertatem abjudicavisse’ from Cicero’s ‘Pro Caecina’ 34 in Long, M. Tullii Ciceronis Orationes [Cicero’s Orations], 2:240 (In Internet Archive).
[37] A source for this statement by Frederick Douglass has not been found. He expressed similar sentiments, however, in his speech against the Dred Scott decision and in speeches and articles defending his change of mind from his original conviction that the federal Constitution was pro-slavery. By 1852, Douglass was willing to declare the Constitution a ‘Glorious Liberty Document.’ See ‘Change of Opinion Announced (From the North Star)’, The Liberator, 23 May 1851; ‘Is the United States Constitution For or Against Slavery?’, Frederick Douglass’ Paper, 24 July 1851; ‘But Not Only Is the Language... [Is the United States Constitution For or Against Slavery? Continued]’, Frederick Douglass’ Paper, 31 July 1851; Oration, Delivered in Corinthian Hall, Rochester, By Frederick Douglass, July 5th,1852 (Lee, Mann & Co. [Printers], 1852), 35–37; Two Speeches, by Frederick Douglass; One on West India Emancipation, Delivered at Canandaigua, Aug. 4th, and the Other on the Dred Scott Decision, Delivered in New York, on the Occasion of the Anniversary of the American Abolition Society, May, 1857. (C. P. Dewey, Printer, 1857), 39–46.
[38] Previously, McCune Smith used ‘grinning at’ in the sense of indicating derision or dismissal, the sense in which he used ‘smile at’ here. See ‘African Colonisation - The Other Side [With Prefatory Note]’, National Anti-Slavery Standard, 28 August 1851.
[39] The French Revolutionary Maximilien Robespierre added these four principles based on the ‘duties of brotherhood’ to his revised version of the Declaration of the Rights of the Man and of the Citizen of 1793, which he presented to the National Convention on 24 April of that year. Robespierre declared 1) that people of every nationality were brothers and should help one another as they would fellow-citizens, to the best of their ability; 2) oppressing a nation is a declaration of enmity to all of humanity; 3) warmongers against progress and human rights should be treated like murderers and criminals; and 4) kings, aristocrats, and tyrants are really slaves in revolt against the true sovereign, Humanity, and the true lawgiver, Nature. See Étienne Cabet, Histoire Populaire de la Révolution Française de 1789 à 1830 (Pagnerre, 1840), 3:469 (In Internet Archive). Gerrit Smith expressed similar sentiments in a speech on civil government, based on the core principle ‘The nations of the earth constitute, and should feel, that they constitute, brotherhood.’ See Gerrit Smith, The True Office of Civil Government: A Speech in the City of Troy (S. W. Benedict [Printer], 1851), 15.
[40] The original text reads: ‘An ingenuus is one who is born [as a freeman], whether the issue in matrimony of two freeborn persons, or of two freed persons, or of one free and one freeborn.’ See Theodore D. Woolsey, ‘Opinion of Judge Daniel, in the Case of Dred Scott’, The New Englander 15, no. 3 (1857): 349 (In HathiTrust). (The article is unsigned, but a biography of Woolsey, classics professor and president of Yale University, also attributes this article to him, citing a quote from the final page. See George A. King, Theodore Dwight Woolsey: His Political and Social Ideas (Loyola University Press, 1956), 56.) For a discussion of ‘Citizenship’ and Woolsey’s critique of Justice Peter Daniel’s opinion for Dred Scott, see John Stauffer, ‘Remaking the Republic of Letters: James McCune Smith and the Classical Tradition’, in The Call of Classical Literature in the Romantic Age (Edinburgh University Press, 2017), 220–21.
[41] See Adam, Roman Antiquities, 40, 41 (In Internet Archive) and the definition of ‘ingenui, ingenuitas’ in Smith, Dictionary of Greek and Roman Antiquities, 637 (In Internet Archive).