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Smith, James M'Cune. 'Citizenship' in 'The Anglo-African Magazine 1:5 (May 1859)' . New York, N.Y. : T. Hamilton, 1859. [format: newspaper], [genre: article; history]. Permission: Northern Illinois University
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By James M'Cune Smith.

Two circumstances are remarkable in the discussions which have stirred the public mind in regard to the Dred Scott decision. One is, that the statement by Judge Taney, of what he believes to have been a prevalent opinion seventy odd years ago, has been tortured into the authority of a dictum, if not a decision of the present Supreme Court of the United States. This statement is, that ‘negroes had no rights which white men were bound to respect.’ It is hardly necessary to say that Judge Taney did not utter this sentence as his own opinion, much less the opinion of the Supreme Court, still less as the decision of the Supreme Court. Had the court held such an opinion they would have dismissed the case of Dred Scott, not for the reason which the Court gave, to wit; ‘because he was a slave in the state of Missouri, according to the laws thereof, and therefore not a citizen of the United States within the meaning of the Constitution’ — no! they would have dismissed the case summarily,

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because Dred Scott was a ‘negro who had no rights which white men were bound to respect.’

The easy rapidity with which this atrocious sentiment passed from tongue to tongue, and the sudden possession which it took of the public mind, create any but hopeful feeling in regard to public virtue or integrity. The anaesthesia which suffered the black man's rights to be swept away — as the public thought — by the sweep of a pen or the utterance of a sentence, will soon be so profound as to regard with equal indifference the abstraction of white men's rights. Nay, does not the history of Kansas prove that such a state of apathy or indifference has already overtaken the public mind? ‘Our goods, but not our principles are for sale’ is a splendid apothegm — so long as any principles survive.

The other circumstance alluded to bears a like relation to our actual position in the path of progress; it shows, that if we are fast, active and advancing, we are nevertheless — superficial; more conversant with the small change of minute facts than with the weightier affairs of profound reflection. In the hurry to discuss the far famed opinion of Justice Taney, we have devoted all our time and attention, from Justice Curtis down to our New York Assembly men, to rebutting this opinion with facts; the broad principles which underlie the discussion, the high argument which should have stirred anew with refreshing influence the deep slumber of decided opinions on the relation which individuals bear to the state, and the limits of the power of the judiciary to alter such relations, have not yet been, nor are they likely to be, reached — because, forsooth, only negroes are supposed to be concerned. A good deal of sympathy has been poured out with pharisaic air, upon the poor disfranchised negro, while no ken has been sharp enough to discern that the whole body politic has received a wound none the less deep, because unfelt. The public mind, swept and garnished from all living perception of justice and mercy, became an easy possession to the seven who constituted the working majority of the Supreme Court.

Leaving to abler hands to discuss the broader bearings of this subject, we propose to examine a single term — citizenship — on which, it will readily be seen the whole question hangs. What is Citizenship?

Singularly enough this term is a species, of which language has not yet furnished the generic term; clear proof, notwithstanding our boasted advance in all things, of our imperfect development in the matter of civil government. The relation which the individual bears to the state has no general expression in language. A subject expresses the relation of a person to a monarchical form of government; a citizen expresses the relation of a person to an elective form of government, that of a city, or a state. A citizen of London, may be a subject of the King of Great Britain. Louis 6th first granted in 1113 certain franchises which made the inhabitants of Nayon citizens; and Henry I. of England by similar grant made the dwellers of London citizens thereof. There is really no difference between citizen and denizen, the latter being the Welsh radical having the force of the latin civis.

As the Constitution of the United States does not define the word citizen, [1]the definition must be sought in the exact meaning of the word itself, altogether independently of the Constitution. Herein, after all, lies the great and only safeguard against the corruption or centralization which grow out of a written constitution. Language, and words with their distinct meaning at the time of its adoption are the only record to which we can safely go back as a barrier against new and forced or false interpretations.

Aristotle defines a citizen to be metochos kriseos kai arches, ‘a partner in the Legislative and judicial power.’ The chief characteristics of citizens among the Athenians were good birth, hereditary transmission of privileges, the possession of land and the performance of military service. So precious was the right of citizenship, that it required a vote of 6000 citizens to admit a stranger to the rights of

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citizenship. Among the Spartans, the helots or slaves earned the rank of citizen by purchase, or by military service, more especially in the heavy army ranks. Emancipation at one conferred citizenship on the person emancipated.

The word citizenship, however, of latin derivation, gathers its purport and exact meaning from the Roman Republic; it originated and grew under the Romans. Regarded as the relation which the individual bears to the state, the word citizenship is worthy of a close and attentive study; a broad historical view of the general relation of individual and state is presented by Mr. Mill in his remarkable essay on Liberty as follows:

‘The struggle between Liberty and Authority is the most conspicuous feature in the portions of history with which we are early familiar, [2]particularly that of Greece, Rome and England. But in old times this contest was between subjects, or some classes of subjects, and the government. By liberty was meant protection against the tyranny of political rulers. The rulers were conceived (except in some of the popular governments of Greece) as in necessarily antagonistic position to the people whom they ruled. They consisted of a governing One, or a governing tribe or caste, who derived their authority from inheritance or conquest, who, at all events did not venture, perhaps did not desire, to contest, whatever precautions might be taken against its oppressive exercise. Their power was regarded as necessary, but also as highly dangerous; as a weapon which they might attempt to use against their subjects, no less than against external enemies. To prevent the weaker members of the community from being preyed upon by innumerable vultures, it was needful that there should be an animal of prey stronger than the rest, commissioned to keep them down. But as the King of vultures would be no less bent upon preying on the flock, than any of the minor harpies, it was indispensable to be in a perpetual attitude of defense against his beak and claws. The aim therefore, of patriots, was to set limits to the power which the ruler should be suffered to exercise over the community; and this limitation was what they meant by liberty. It was attempted in two ways. First, by obtaining a recognition of certain immunities, called political liberty or rights, which it was to be regarded as a breach of duty in the ruler to infringe, and which if he did infringe specific resistance or general rebellion was held to be justifiable. A second, and generally later expedient, was the establishment of constitutional checks; by which the consent of the community, or a body, of some sort, supposed to represent its interests, was made a necessary condition to some of the more important acts of the governing power. To the first of these modes of limitation, the ruling power, in most European countries, was compelled, more or less, to submit. It was not so with the second; and to attain this, or when already in some degree possessed, to attain it more completely became everywhere the principal object of the lovers of liberty. And so long as mankind was content to control one enemy by another, and to be ruled by a master, on condition of being guaranteed more or less efficaciously against his tyranny, they did not carry their aspirations beyond this point.

A time, however, came, in the progress of human affairs, when men ceased to think it a necessity of nature that their governors should be an independent power, opposed in interest to themselves. It appeared to them much better that the various magistrates of the State should be their tenants or delegates, revocable at their pleasure. By degrees this new demand for elective temporary rulers became the prominent object of the popular party, wherever

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any such party existed; and superseded, to a considerable extent, the previous efforts to limit the power of rulers. That (it might seem) was a resource against rulers whose interests were habitually opposed to those of the people. What was now wanted was, that the rulers should be identified with the people; that their interest and will should be the interest and will of the nation. The nation did not need to be protected against its own will. Their power was but the nation's own power, concentrated, and in a form convenient for exercise. This mode of thought, or rather perhaps of feeling, was common among the last generation of European liberalism. Those who admit any limit to what a government may do, except in the case of such governments as they think ought not to exist, stand out as brilliant exceptions among the political thinkers of the Continent.’ (Introduction, pp. 9 — 11.)

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.

The Roman Citizen had two classes of rights, the private rights IUS QUIRITIUM, and the public rights IUS CIVITATIS. 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. And once a Roman Citizen, the individual could not by any process be deprived of citizenship, [3]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 the use of fire and water, (iis igne et aqua interdictum est) which obliged them to repair to some foreign place.

The JUS QUIRITUM or private rights of Roman citizens, were 1. Jus Libertatis, the right to liberty; 2. Jus Gentilitatis et Familiae, the right of family; 3. Jus Connubii, the right of 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.

Let us take a glance at these private rights of Rome 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.’

The free blacks, in all the free states, and in the slave states (except where prohibited by statute law) have ever enjoying 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’ is especially proscribed in Art. 1, Sec. IX, clause 7, of the Constitution of the United States.

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. [4]‘CONNUBIUM’ est matrimonium inter cives; inter servos autem, aut inter civem et peregrinae conditionis homium — non est Conubium, sed CONTUBERNIUM. [5] By the laws of the Decemviri intermarriages between the Patricians and the Plebians were prohibited, 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, [6]as has been done in Massachusetts.

4th. JUS PATRIUM; ‘the right of a 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,

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before a competent magistrate, with the consent of his son, that he freed him for his power by saying, ‘Hunc sui Juris esse patior, meaque manu mitto.’ 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 the common law give to white citizens.

5th. JUS DOMINII LEGITIMI; ‘the right of property.’ The right to hold and convey real estate has ever been enjoyed by the 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 any thing by testament. [7] 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. IUS TUTELAE; ‘the right of tutelage or wardship.’ Any father of a family might leave whom he pleased as guardians [tutores] to his children. [8] 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.

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. 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 among those to whom the Constitution extends the JUS CENSUS; for all are enumerated as the basis of Representation, and, if need be of taxation. [9] Among the Romans, slaves as well as aliens were excluded from the JUS CENSUS.

2. JUS MILITIAE; ‘the right of serving in the army.’ The Constitution having Art. I, Sec. 8, Clause 16, 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; 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. 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. 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 mulattoes in said companies to be employed as drummers, fifers and pioneers;’ and a subsequent provision was made (Same, p. 280) enlisting free negroes for actual service.

3. JUS TRIBUTORUM; ‘the right to be taxed’ is of course equally enjoyed by the free blacks in all the States of the Union: it is a mark

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of citizenship which the slave States have showered upon their free blacks with a most liberal hand.

4. JUS SUFFRAGII; ‘the right of voting.’ 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.

5. JUS HONORUM; ‘the right to hold office,’ although they have held but few public offices, there is no legal reason why a free black may not hold any office in many of the States, none why he may not become President of the United States.

6. JUS SACRORUM; ‘the right to minister in the sacred things.’ 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, the word must bear the meaning which language itself attaches to it under like circumstances, to wit, when it expresses the relation of the individual to the general government. As in Roman polity, the possession of any of these rights constituted the possessor. For example, according to Justinian, a man emancipated became free as his emancipator, that is a citizen, immediately. According to Cicero, [10] 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 interferences. 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 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 Douglas has well said ‘than would be framed by a Convention held to-day in the United States.’ 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 the ideas of citizenship in Rome, could no more help admitting 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 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 acknowledgment 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 differents 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 People pour arreter les progres la liberti et les droits de l'homme doivent etre poursuivis par tous, non comme des ennemies ordinaires, mais comme des assassins et des brigands rebelles. — 4. Les Rois, les Aristocrats, les Tyrans

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(including slaveholders and their abbettors) quets qui'ls socent, sont des esclaves revoltes contre 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 Ill. p. 461.)

NOTE. Professor Woolsey in the New Englander for August, 1857, in his able review 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, 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.’

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Smith, James M'Cune. 'Citizenship' in 'The Anglo-African Magazine 1:5 (May 1859)' . New York, N.Y. : T. Hamilton, 1859. [format: newspaper], [genre: article; history]. Permission: Northern Illinois University
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