AGAINST THE “RESIDENCY STANDARD”: THE CENAMY CASE
The full significance of Bodin’s consent analysis, however, can only be seen in contrast with opposing doctrines of acquired citizenship, all of which treated citizenship as somehow disconnected from consent.
One such doctrine, what might be called the “residency standard,” was the legal doctrine that a person may acquire citizenship status simply by physical residence in a state over a legally “prefixed” period of time, without any further action.For Bodin, the mere fact of foreign residence alone does not (and should not), in any way, count towards citizenship, especially in cases of long-domiciled resident foreigners such as the aubain in France.[336] This is because mere residence is insufficient for signaling or expressing the consent essential to forming the vertical bond of civil subjection. As he writes in the De Republica:
It sufficeth not to have dwelt in another mans country the time prefined in the customes, to ob- taine the freedome of a citizen; if the straunger do not demaund the citisens right and freedome, and be thereinto also received: for it may bee that the straunger would not for any thing change his prince, howbeit that his affaires hold him out of his owne country. For howbeit that many be of opinion, that a man having staid the prefixed time in another mans country, without having obtained letters of naturalizing, is yet capable of testamentary legacies...But to obtaine the full right and priveledge of a citizen, it sufficeth not to have dwelth the time appointed by the decrees and ordinances of the place, if a man have not both demaunded and obtained the same.[337]
Indeed, his rejection of the residency standard is perfectly consistent with his quite pluralistic view of citizenship - after all, even “expatriates” can still be “citizens.”
Bodin’s vocal rejection of the residency standard in favor of the consent standard suggests that such novel theories attempting to extract citizenship from facts of residency were gaining traction in sixteenth century legal thought.
Some of these ideas may have derived from the consilia of the Italian Commentators, most notably those of Baldus. For Baldus, true citizenship can be “implied” from habitus - “a deeply ingrained inclination toward civic duty created by birth and fostered by upbringing.”[338] For new residents, however, habitus could only emerge over time as they developed natural ties and feelings of obligation to and identification with their adopted land. Here, there is no need to find expression of consent to a sovereign authority under whom one is subject.Bodin, by contrast, makes explicit consent the essential standard for citizenship, not implied elements of citizenship from habitus. Bodin illuminated his critical views on the residency standard with reference to a series of cases dealing with legal questions of citizenship that were tried before the French sovereign courts.[339]
One case that Bodin cites in both the Methodus and the De Republica was the so-called Cenamy Case, decided ultimately in the Parlement of Paris in 1554, just a few years before Bodin was admitted to plead before the same court.[340] Pandulphe de Cenamy, a Frenchman, took up residence in Venice and lived there for thirty years, until his death. Although he married a Venetian woman and raised a family in Venice, he never formally renounced his status as a French subject, and so there was a legal question whether he, by reason of long residence, had legally become a Venetian citizen, thereby losing his French civil rights, including especially the civil rights of French subjects to write a will or to inherit property while intestate. Had Cenamy and his heirs become foreigners in the eyes of the French sovereign courts, such that he and his heirs were legally incapacitated from exercising such civil rights exclusive only to French subjects? Bodin summarizes the legal question at issue as follows. He puts the question as whether:
he that had dwelt all his life in a straunge country should enjoy the right and freedome of a citizen in his owne country.
And many there be, that thinke he ought not to enioy the same; saying, That regard is to be had to the place of his long dwelling.[341]Bodin, however, parted company from defenders of the residency standard, such as Baldus, and instead cited the authority of the new doctrine foreshadowed by the sovereign courts of Parlement:
I am of opinion (if mine opinion may take place) That hee ought neverthelesse to enjoy the priveledge of a free citizen, if he have not by consent of his prince expressly renounced it, or els done some fact contrarie to the dutie of a naturall subiect. Neither am I alone of this opinion. For the court of Parliament of Paris, by decree made the xiiii of Iune, in the yeare 1554, adi- udged that a French man [Cenamy] having dwelth fiftie yeares [14 years] in Venice, continued yet still subiect to the French king, and was received unto the succession of his next kinsmen: hee having in the meane time done no harme against his country, neither committed any crime for which he ought to loose his libertie, neither having refused to come being called home by his prince; nor yet requested the freedome of the citie of Venice to have bene given him.[342] The mere fact of residence alone - even residence for long periods of time - does not by itself “mature” or “ripen” into citizenship by the mere passage of “pre-fixed” or “prefined” time (fourteen years, in the case of Venice).
But why should long residence in Venice not count toward adjudicating Cena- my’s citizenship? For Bodin, to argue mere residence as the primary criterion (without any further or additional indication of an intent to change citizenship) relies on a troublingly dubious form of legal argument that violated what Bodin took to be a more basic legal principle of equity involved in the relationship of civil subjection between sovereign and citizen: “Secret consent ought to hurt no man, being esteemed as no consent in things prejudicial.”[343]
Certainly the loss of citizenship, what amounted to a forfeiture of one’s civil rights without giving express consent, would clearly count as prejudicial. But it was doubly prejudicial. It was prejudicial to the citizen, such as Cenamy, because he would lose his former citizenship without consent, but also to the sovereign because he loses a citizen without leave. This was a moral argument: an injustice was thought to be involved in the juridical novelty of altering civil status simply by the fact of residence.
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