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[From the N'ew Englander for August, ISi'?.]

ON
A PASSAGE IN TPIE OPINION OF JUDGE DANIEL,
IN DRED SCOrr'S CASE.

OtjR readers, -we are sure, -will not blame 'us, if we admit
into the present number of the jSTew Englander two articles
suggested by the -decisions of the Supreme Court in the case of
Dred Scott. Tho vast and gloomy importance of these de
cisions naturally invites examination. If the case wero one
simply of technical and subtle law, the 'lay' public would
leave such examination to the lawyers, content to rely upon a
profession, in which the predominant voice is almost sure to be
right, and which, in this very decision of the supreme court,
has earned, for itself unfading laiu-els and unfading gratitude
by the opinion of one trtio lawyer, Mr. Justice Curtis. But
the case runs far outside of the exclusive domain of the lawyer,
into a field avhere the student of history and of politics can
walk by his side, and weigh liis arguments, and, if neces
sary, judge over him. For it can happen that when a man of
forms and of some reputation for legal learning is obliged to

2 Opinion of Judge Daniel, [Aug.,
rise into a higher sphere of principles, he may find himself in
a strange place, and betray the slenderness of his qualifica
tions, while the unprofessional man, who has been familiar
with the subjects involved in a point of law, may be better
able to pass an opinion upon it.
In respect to the decision in the Dred Scott case, it has been
shown on various sides how utterly uninformed and even reck
less the Chief Justice is in regard to his statement of facts. "We
propose to ourselves a humbler task, — one more remote
from the gist of that case, and confined to a small portion of
the decision of another of the Judges. Mr. Justice Daniel, in
his opinion has seen fit to examine the argument that the
emancipation of a slave, with or against his master's will, pro
duces such a change in his status as to transform him into a
citizen. The argument he affii-ms to be wholly untenable and
¦unsustained by the direct authority or the analogies of history.
He then proceeds to consider Koman law and usage, in a pas-
6a<Te, to an examination of which we intend to confine our-
selves, and which, as it is not long, we will transfer to our
pages. "The institution of slovery, as it exists and has existed from thb period of
its introduction into the IJnited States, though more hnmane and mitigated in
character than -was the same institution, either under the republic or tlie em
pire of Rome, bears, both in its tenure and in the simplicity incident to the mode
of its exercise, a closer resemblance to Roman slaTery than it does to tlie con
dition of villeinage, as it formerly existed in England. Connected -with the
latter, there 'Were peculiarities, from custom or positive regulation, -which
varied it materially from the slavery of the Romans, or from slavery at any
period -within the tTnlted States.
" But with regard tn slavery amongst the Romans, it is by no means true
that emancipation, cither during the republic or the empire, conferred, by
the act itself, or implied, the utatus or the rights of citizenship,
"The proud title of Roman citizen, -with the immunities and rights incident
thereto, and as contradistinguished alike from the condition of conquered subjecta
or of the lower grades of native domestic residents, -was maintained throughout
the duration ofthe republic, ond until a late period of the eastern empire, and
at last was iu effect destroyed less by an elevation of the inferior classes than
by the degradation of the free, and the previous possessors of riglits and im
munities civil and political, to the indiscriminate abasement incident to abso
lute and simple despotism.
"By the learned and elegant historian of the Decline and Fall ofthe Roman
Empire, we ave told that 'In the decline of the Koman erapire, the proud dis-

1857.] In the Case of Dred- Scott. 3
tinctions ofthe republic -were gradually aboliAed ; and the reason or instinct of
.Justinian completed the simple form of an absolute monarchy. The emperor
could not eradicate the popular reverence -which always waits on the posses
sion of hereditary wealth or the memory of famous ancestors. He delighted to
honor with titles and emoluraents his generals, magistrates, and senators, and
his precarious indulgence communicated some rays of their glory to their
wives and children. But in the eye of the la-w all Roman citizens were equal,
and all subjects ofthe empire were citizens of Rorae. That inestimable char
acter was degraded io an obsolete and empty name. The voige of a Roman
could no longer enact his laws, or create the annual ministers of his powers ;
his constitutional rights might have checked the arbitrary will of » master ;
and the bold adventurer from Germany or Arabia was admitted with equal
favor to the civil and military command which the citizen alone had been once
entitled to assume over the conquests of his fathers. The first Cffisars had scru
pulously guarded the distinction of an ingenuo-us and servile birth, which waa
decided by the condition of the mother. The slaves Who were liberated by a
generous master immediately entered into the middle class of libertini or freed
men ; but they could never be enfranchised from the duties of obedience and
gratitude; whatever were the fruits of their industry, their patron and his
family inherited the third part, or even the whole of their fortune, if they died
without children and without a testament. Justinian respected the rights of
patrons, but his indulgence removed the badge of disgrace from the two in
ferior orders of freedmen ; whoever ceased to be a slave, obtained without re
serve or delay the station of a citizen ; and at length the dignity of an in
genuous birth was created or supposed by the omnipotence of the emperor.'
" The above account of slavery and its modifications will be found in strictest
conformity with the Institutes of Justini.an. Thus, book 1st, title 3d, it is said :
' The first general division of persons in respect to their rights is into freemen ond
slaves.' The sarae title, sec. 4th : ' Slaves are born such, or become so. They
are born such of bondwomen; they become so either by *he law of nations,
as by capture, or by the civil law. Section 5th: ' In the condition of slaves
there is no 'diversity ; but among free persons there are many. Thus some are
ingenui or freemen, others Itherti-ni or freedmen.*
" Tit. 4th. De Ixge.nuis. — ' A freeman is one who is born free by being born in
matrimony, of parents who both are free, or both freed; or of parents one free
and the other freed. But one born of a free mother, although the father be a
slave or unknown, is free.'
" Tit. 5lh. De Libertinis. — ' Freedmen are those who have been manumitted
from just servitude.'
"Section third of the s.irae title states that 'freedmen were formerly distin
guished by a threefold division. | But the emperor proceeds to s.iy: 'Our
jiietg leading us to reduce all things into a better state, we have amended our
laws, and reestablished the ancient usage ; for anciently liberty waa simple and
undivided — that is, was conferred upon the slave as his manumittor possessed it,
admitting this single diflference, that the person manumitted became only a
freed man, although his manumittor was &free man.' And he further declares t
' We have made all freed men in general become citizens of Rome, regarding

4 Ojpinion of Judge DoMiel, [Aug.,
neither the age of the manumitted, nor the manumittor, nor the ancient forras
of manumission. We have also introduced many new methods by which
slaves may become Roman citizens.'
"By the references above given it is shown, frorn the nature and objects of
civil and political associations, and upon the direct authority of history, that
citizenship was not conferred by the simple fact of emancipation, but that such a
result was deduced therefrom in violation of the fundamental principles of free
political association; by the exertion of despotic will to establish, under a false
and misapplied denomination, one equal and universal slavery ; and to effect
this result required the exertions of absolute power — of a power both in theory
and practice, being in its most plenary acceptation the sovereigntt, the
Statk i-tself — it eould not be produced by a less or inferior authority, much
le-8 by the w^ill or the act of ono who, with reference to civil and political
rights, was himself a slave."
How is this ? Were Koman law and usage as Judge Daniel
represents them, or were they not ? We undertake to show that
they were not — that the manumission of a slave by the will
of his master did immediately exalt him, through the whole
period of the Kepublic, into the privileges of citizenship, and
that restnctions on liberation, as well as on the possession of
full civic rights by the freeman, began under the Empire.
But before entering upon tliis enquiry, we must look for a
moment at the passages which Judge Daniel has cited from the
Institutions of Justinian. "We do not know whether the transla
tion he has given is his own or that of another : he is at least
responsible for it. Will it now be believed that he has cor
rupted the sense, as far as lay in his power, by a most enor
mous blunderin Latin, a blunder which, we doubt not, many
persons "whose ancestors were of pure African blood" in this
country are able to point otit ? He has represented the Latin
word ingenuus by free, making it thus the opposite of slave
and implying that a lihertinus or freedman, who was certainly
not an ingenuus and never could become one, was not in the
full sense a freeman. But every boy ought to know that
ingenuus means freeborn. This blunder is repeated over and
over again, although the sense makes it absurd, and althouo-h
the word liber, which occurs as the genus of which the in
genuus and the libertinus are the species, ought to force upon
any thinking man the suspicion that all could not be right in the
translation. If some freemen are ingenui and others liiiertini

1857.] In the Case of Dred Scott. 5
how absurd is the translation " and some [i. e some freemen] are
ingenuit or freemen, others libertini or freedmen'" ! We doubt
whether, among all the persons who ha^'c referred to Koman
law, such a mistake was ever before committed. Tlic learned
Judge deserves credit for his originality. What the law says
is simply this : Some freemen are born such, others made such.
An ingenuus is one who is born stich, whether tlie.is.sue in ma
trimony of two freeborn persons, or of two freed persons, or of
one free and one freeborn. As there cottid be no Tnatrimo-
nium between a freeman and a slave woman, it is here assumed
that their issue has the servile condition. On the other hand,
it is expressly stated, in the sequel of the passage mistranslat
ed by the Judge, that the issue of a free woman and a slave,
and the issue of a free woman and uncertain father, born in
prostitution, nay, even the issue of a woman who was a slave at
the conception of her child, and became free before its birth,
is freeborn.This passage from the fourth title of the first book of the In
stitutions "ought to have been enough to show the Judge with
what facility the Komans conferred citizenship on the children
at least of freedmen. There was no higher or better condition at
Kome than that of ingenuus. Now the passage tells him that
the child of freed persons is an ingenuus. To such a person,
therefore, all the rights in the_^State were open. The Apostle
Paul declares himself to have been a born Koman. How this
happened he does not tell. But if his grandfather — ^for in
stance — ^liad been a Jew enslaved in war and carried to Komo
and there manumitted, his son might have been freeborn, and
.on removing to Tarsus Avould have carried his citizenship with
him as an inheritance of his family. And for aught that ap
pears, the apostle, on removing to Kome, would be a civis
optimo jure.
The passage, again, from the fifth title should have taught
the Judge that just the opposite of what he contends for is
trae. The emperor is there made by his lawyers to say tliat
his piety or grace reestablislied tlie ancient usage ; — we give
a more correct translation, which onr readers may compare
with that of Judge Daniel — " for in the earliest times of Kome

6 Opinion of Judge Daniel, [Aug.,
only a single and simple kind of liberty subsisted, i. e. the
same wliich the manumitter had, except that he who is
manumitted is a freedman, although the manumitter were a
free born man." In other words, in early Kome there was but
one kind of freedmen, and they had the same liberty which the
citizens who freed them enjoyed, saving that it was an impossi
bility in the nature ofthe case for the man who was not born
free to become freeborn. Of course, then, in those early
times, if the manumitter was a citizen of Kome, the freedman
becanie such. Else how could Justinian reestablish an ancient
usage, and make all freedmen in general become citizens of
Rome, as the title declares. This is just the opposite of what
the Judge affirms with this title staring him in the face. Slaves
in old republican times became citizens in full, and after
wards restrictions were imposed upon their right. There
is no doubt here as to the sense. But we add ex abundanti
the comment of Theophilus, one of the lawyers who drew up
the Institutions and afterwards lectured on them at Constanti
nople ; and whose Greek paragraph of them, still preserved,
is an important contemporary interpretation."* " For at the
beginning," he says, " the Koman empire knew of but a sim
ple condition of freedmen, that is that they should have the
same freedom which their manumitter also possessed, and that
both should be citizens of Some, the difi'erence lying in this
only that the manumitted person was a freedman, aljthough the
manumitting person was freeborn." Erom the former relations
of the patron to the freedman, a personal tie resembling that of
filial piety lay on the latter, of which we shall have occasion to
speak hereafter ; but we do not believe that this is referred to .
in the passage before us, where it is said that the manumitted
man is a freedman and not an ingenuus.
The only other point in the passage from the Institutions to
which we call attention is that in which we read, (Title 3rd
section 4th,) that " Slaves become such either by i!>^e law of na
tions, as by capture, or by the civil law." We aro at a loss to
know why the Judge printed the words " the law of nations "

* Theoph Paraphr. ed. Reitz. Vol. I, p. 56.

1857.] In the Case of Dred Scott. 7
in italics. Is he aware what this jjliraso denotes in Koman
Law, and that, for instance, it may be said with equal justice that
manumission is by the law of nations, which the great lawyer
Clpian affirms in so many words ?"¦*
It thus appears that the passages cited by Judge Daniel
ought to have taught him that Justinian established no new
usage, but went back to the received custom of ohl republican
times. " A primis urbis Komae cunabulis una atque simplex
libertas conpetebat," says the passage which both he and we
have translated, " id est eadem quam habebat manumissor."
The truth of this assertion, and whatever qualifications ought
to be attached to it, will appear by a brief historical sketch of
the relations of freedmen to the Koman state, reaching as far
back as our knowledge extends, and embracing the leading
principles of the legislation of the empire. As the point at
issue is simply tlie civil status of libertini, we dismiss all other
points from our consideration. It might be instructive to look
at the forms of legal manumission. It might be instructive to
look at the social estimation in which freedmen were held.
But these matters are aside from the question. We only say
that their social position was low, not so much because they
had been slaves, but because they were, for the most part,
operatives, and it was one of the diseases of ancient Koman as
well as Greek society, as it will be of all societies where
slavery exists, to hold manual labor and the mechanic arts in
contempt. * Digest 1. 1. §4. " JIauumissiones quoque juris gentium sunt," — Ulpian then
adds a little after, "this relation took its origin from the jus gentium, since by jus
naturale all were born free, and manumission was not known, whilst slavery was
unknown. But after slavery oame in by the jus gentium the benefit of manumis
sion followed; and whereas by oue natural name' we are called men, by the
jus gentium three classes of persons began to exist, the free and the slave his
opposite, and a third class, fi-eedmen, i. e., those who have ceased to be slaves.''
So the theologian could say that the introduction of sin makes a distinc
tion between innocent, sanctified aud unsanctified persons possible. Ulpian's
jus naturale, of whioh he is supposed to be the author, ia of no value in
Rom.in law, although it is introduced into the institutions of Justinian. It
does not come up to our natural right. The passage cited from him is of value,
because it shows how a sense ofthe unnaturalness of slavery acted on a Roman
lawyer. Savigny supposes (System, voL 1, p. 414, seq) that Ulpian was led
o this distinction by reflecting on the condition of slavery.

Opinion of Judge Daniel, [Aug.

a-'

If we could trust Dionysius of Halicarnassus, we should be
gin our historical sketch at a very early epoch. He says that
before the reforms nnder Servius Tullius, manumission gave
no claim to citizenship. Of this he could know nothing what
ever, but it is quite probable in itself, since even the plebeians
can be said to have had at that time only an inferior kind of
citizenship, and next to no political safeguards. Of the
Servian legislation in regard to freedmen, the same author in
forms us, (iv, § 22, 23, p. 226 ed. Sylburg,) that manumitted
slaves had their choice between going back to their own towns
and remaining at Kome in the enjoyment of equal political
rights with the former citizens. They had the right to be en-
registered, and were included in the four city ti-ibes, where,
says he, they continue until now. The historian then adds,
that this policy of the king was quite distasteful to the
patricians, and puts a speech into his mouth in defense of his
measures, to the effect that Kome's true interest lay in increas
ing the number of her citizens, and that the populace, the more
numerous it became, could be managed the more easily by the
upper class.
This passage of Dionysius is important, and may contain
some truth, but cannot be in all respects deserving of credit.
Eor, 1. It is now generally admitted by the best archjeologists,
that under the Servian constitution there were but four tribes in
all, and no distinction between city and rustic tribes.* Tliis
in fact the historian elsewhere asserts, and seems to have forgot
ten himself in the present passage. 2. There is reason to be
lieve that long after Servius the right of suffrage was confined
to those who held real estate, and that the money estimates,
which we find in otir books, of the property which admitted
citizens into the several classes of the comitia centurJata, were
estimates of the worth of land, not at the original value of the
as, but at one-fifth of its value. f
* See Theodor Itommsen, Die Rom. Tribus, p. 4, (Altona, 1S44.) Niebuhr's
opinion in regard to the tribes is now generally abandoned.
f We believe that since Boeekh published his metrological enquiries, in 1838
and Mommsen his wort on the Roman tribes, in 1844, this opinion has been
generally followed. Thus Schwegler, in his recent history of Rome to]. 2<
and Lange, in his Antiquities, published last year, accede to this opinion.

1857.] In the Case of Dred Scott. 9
But notwithstanding this inaccuracy, there is no reason to
doubt that freedmen obtained at a vory early day a citizen-
sliip of as good a kind as auy born freenum could possess.
Mommsen, wlio is perhaps the best authority in Koman antiqui
ties now living, expresses it as his opinion, that "originally tliG
difference between the free-born and the freed, was one of fact
only, so that if a freedman once obtained possession of a piece
of land, he voted like any other landholder in the tribes."
Coming down now to the time of the twelve tables, wc find
freedmen exercising the right of a Koman citizen in making a
testament. Gaius and Ulpian* inform us that according to
that code a freedman might pass his patron by in his will, or if
he made no will and left heirs, {sui heredes, i. e. children who
were still a part of his family, and a wife who was in his Jtund,)
these heirs, were they even a wife or an adopted child, would
inherit. If, however, he died intestate without heirs, his prop
erty devolved by right upon his patron, as being his next of
kin according to the Koman idea of the family union. This
provision of the twelve tables v.'as, however, at some later pe
riod of Koman law, altered by the prffitor's edict in favor of
the patron. JSTotwithstanding this obligation, the freedman had
a greater independence of his patron than the unemancipated
son had of his father, since the latter could not make a will, al
though he were himself a praetor, or a consul.
We pass on now to the censorship of Appius Claudius, the
blind, in the year 442 of the city, about lialf a century before
the first Punic war. This innovator, the most thorough-going
in all Koman history, made u,5e of his censorial powers to ef
fect, as it would seem, an important change in the right of stif-
frage. We derive three accounts of his proceedings, from
Livy, Diodorus Siculus, and Plutarch. Erom these accounts,
which to some extent supply each other's deficiencies, and yet
leave the subject not without obscurity, it appeare probable
that Appius, for the first time, allowed citizens M'ho had no
landed property, to be enregistered in any -of the tribes, which
were then thirty-one in number. This, Avhich involved the
right of suffrage, gave considerable influence to the freedmen
* Gaii inst. 3 § 40. Uip. frag. ed. Booking, Tit. 39, § 1.

Id Opinion of Judge Daniel, [Aug.,
and others belonging to what Livy calls the fore-nsis f actio,
who iu the use of that power, chose a freedman's son, Cnaeus
Flavius, to the ofiice of curule ajdilc. Elavius made his mag-
istn-icy memorable by publishing the forms and times of action of
the civil law, which had- been laid up before in the penetralia of
the pontiff's, and knoAvn to patricians only. Appius went so far
as to elect into the senate some freedmen's sons, to the great
vexation oi the other senators, a considerable part of whom still
belonged to the patrician families. But no one, says Livy, 13-
g'U'ded this election as of validity.
A few years afterwards, in the year 450 of the city, a reac
tion came ou, which, however, stopped short of excluding
citizens without property from the right of voting. In the cen
sorship of Eabius and Decius, the former of the two adopted
the measure of separating the t^m-ba forensis, or citizens living
in the city, und engaged in mean employments, fromthe tribes
througii which Appius had distribtrted them, and of confining
them to f^ur tribes, which thenceforth ' were called the city
tribes. This measure, which had the nature of a corapromise
between the new and old citizens, and which brought back a
sort of concord, earned .-for its author the title of Maximus.
As for those freedmen who owned landed estates large enough
to bring them into tbe second class of the comitia centuriata,
the innovations of Claudius and the reforms of Eabius seem
not to have touched them ; they were enrolled as before, in any
c>f the tribes. The freedmen without property, although regis
tered in the tribes, seem not to have belonged. to the centuries,
.and therefore not to have voted at the comitia of the centuries,
at least until Marius, in the year 665, called them into the le
gionary service.
Tlie question may now be asked, what were the rights of Ko
man freedmen under the Kepublic ? That they Avere more
thrm merely citizens, that they had the right of suffrage, which
a citizen did not necessarily enjoy, has appeared in the forego
ing examination. Llad they the J us hoiioruin also, or the right
of holding honorable public oflices ? Some writei-s on Koman
antiquities havo affirmed that they and their children were not
invested with this right, but no satisfactory proof of this has
met our eye, nor will the undoubted fact, that public feeling

1857.] In the Case of Dred Scott. 11
was against it, constitute any argument. If a new man like
Marius or Cicero was seldom raised to ahigh office iu the State,
how much more should we expect this of persons of servile
extraction. And yet we find mention in Cicero"- of a freed
man's son who was a senator, and was tried for andritus, or im
proper electioneering to procure office. Some time afterwards
we find the censor Appius Claudius Pulcher thrusting ont of
the senate all the freedmen,f (or, as perhaps the sense of our
authority is, sons of freedmen,) who were members, together
with some other persons, among whom, on accoimt of his char
acter, was the historian Sallust. Soon after this, Julius Csesar,
when Dictator, admitted freedmen's sons into the senate with
out scruple ; but his motive was to^ abridge the power and
honor of that body. Erom all this it is probable that no pos
itive law excluded these descriptions of persons from public
offices or from the senate.
Whether any conniibiuni was allowed between free-born and
liberated persons, is an enquiry touching not more the rights
of the latter of these classes than ofthe former. The probability
is that such marrlao'e would not have been regarded -matrimo-
nium justum ¦ and this may have been the case from the time
of tlie Twelve Tables onward. The principal passage of Ko
man history bearing on this point is one in Livy, (39, 19,) rela
ting to a freedwoman who disclosed to the Consul the profligate
secret society of the Bacchanals. As a reward for her revela
tions, she obtained from the senate and people among other
privileges, " uti ei ingenuo nubere liceret, and that fo him who
should marry her no harm nor ignominy should attach on that
account." This passage seems to show the unlawfulness of a
marriage between these two classes, and yet the character of
the woman, who was the mistress of a young Komau, may have
contributed to the vote. This took place in the year 567 of the
city. In the next century we find that Mark Antony's first wife
was the daughter of a wealthy freedman,:|: and for aught that
appears, the marriage was a legal one, although frowned upon
by the opinion of the aristocracy.
* Pro Cluent, 4Y'. \ Dio Cass., 40, 63. % Cicero Philip, 2. 2.

13 Opinion of Judge Daniel, [Aug.,
This subject of inteiin arri age between citizens of different
conditions, received the earnest attention of Augustus. By a
law called after him, (a lex Julia of tho year 726, as it seems
probable,) and renewed with modifications in 762, (A. D. 9,)
from the Consuls of which year it is called the lex Papia
Poppsea, — marriage was prohibited between a senator, his
children, and descendants of the third and fourth degree, on
the male side, upon the one hand ; and a freed person, a play
actor, or child of a play actor, on the other. Such is the sub
stance of one clause of the law, as preserved by the lawyer
Paullus in the Digest.'^' Erom other sources we learn that cit
izens who were not senators were permitted to marry freed-
women, but not play actresses or women of bad character.
Tlius, after this legislation, even a senator might marry the
child of a freed person, and any pther citizen who should marry
a freed person, would enter Into the best kind of mar
riage known to Koman law. As Augustus was anxious to keep
the senate pure, it is probable that these regulations were a
restriction on previous custom, if not on previous law.
Erom the middle of the sixth century the freedmen became
an increasingly numerous and important class. A number of
attempts 'svere made by them to gain the privilege of being
assessed and of voting in any of the tribes, and several of the
leading demagogues of the later republic brought forward laws
with this object in view. To enter Into the history of these
attempts, would be tedious, and uncalled for. It Is enough to
say, that the freedpen continued to vote in the four city tribes,
until the empire was established, and indeed as long as vot
ing and the tribes were of any importance.f
* Digest Lib. 23, Til. 2. 44— Comp. Ulpian Frag. Tit. 13.
f It has been said by some learned men, that the freedmen stood outside of
tho tribes, on the ground that among the vast multitude of Roman names with
these tribes attached, which have come down to us, no names of freedmen ap
pear upon genuine inscriptions. If this wore so, it could not contradict or ren
der suspicious the positive testimony of history. But Mommsen, in his work ou
the Tribes, has shown the contrary, (p. 1T8.) This learned antiquary and able
histori.in, who is now professor at Breslau, is said to be engaged on a collection
of Latin inscriptions, having already published about 15,000 in his work on the
Inscriptions of the Kingdom of Naples.

1757.] In tha Case of Dred Scott. 13
With the establishment of the empire, a new era begins In
the history of Koman freedmen. Restrictions unknown before
on the right of manumission, kept their numbers down. Other
la'n-s brought them into a closer relation with their patrons
than they had sustained during the republic. But especially
a system was now commenced by which they were divided
into classes with different rights, some being excluded from
citizenship, others forming a rank between citizens and aliens,
and others still having as full civic rights as under the republic.
The motives for this change in legislation, are not hard to be
found. With the immense Increase of slavery in the sixth and
seventh centuries of Rome, an immense frequency of emanci
pations corresponded. The populace of Kome uneasy and tu
multuous, consisted, to a considerable extent, of that class of
persons. As the blighting influence of slavery made the free
born Komans feel that labor was dishonorable, this class espe
cially had in its hands those employments which are one step
above manual labor. Without good habits, without education,
pliable, insinuating, they were ready for any agency in evil,
by which they conld advance their interests. Dionysius, a
contemporary, draws a gloomy sketch of this lower stratum of
the Roman people, (iv, 24.) Some, says he, having earned
money by all kinds of crimes, with their money buy their free
dom, and straight way are Romans. Others, privy to the crimes
of their masters, have their freedom given them as the reward
of their assistance. Others, again, are liberated that they may
receive the monthly grain and any other donative granted by
the prince to the poor, and may pay it over to their former
masters. Some liberate their slaves out of vanity, by testaraent,
that they may be called beneficent after their death, and may be
followed to their sepulchers by many, with the plleus on their
heads In token of emancipation, among whom, he affirms,
might be found malefactors bought out of the prisons, who
had done deeds deserving many deaths.
Besides this motive, arising from the characterof many ofthe
freedmen, a financial motive mnst havehad some influence in
bringing about the change of which we have spoken. Tlie prac
tice of " frumentatlon," or granting coru below the market price

14 Opinion of Judge Daniel, [Aug.,
and sometimes gratuitously, to the citizens resident at Rome,
was an inheritance from the latter days of the Kepublic. The
emperors couldnot abolish, — could scarcely mitigate thisheavy
burden on the treasury. Every citizen had his right to the ben
efits of the distribution, and thus it became expedient to dimin
ish the number of liberations as far as possible. That this mo
tive must have been operative is shown by the vigorous meas
ures of Julius Caesar In the year 70S, (46 B. C.) He caused
lists to be prepared of those who were entitled by their citizen
ship to receive supplies of corn, and in this way excluded
170,000 men, who, owing to the disorders of the previous times,
had stolen into the enjoyment of citizenship.
Such were the motives for a change in the Koman policy as
it respects freedmen. The principle of the change was suggest
ed to the lawyers of the empire by the old division of persons
under Koman law into citizens, Latins and peregrini or aliens.
The citizens of the Latin States at one time fornied a middle
term between Romans and strangers. The Latin colonies or
colonies with Latin right, had more restricted privileges than
these States, but still stood on their middle ground. When citi
zenship was extended to all the Italians in the year 664of the
city, this measure was immediately followed by a grant of the
same privilege to the Gauls on the south side ofthe Po ; and the
towns of Gallia Transpadana received the Latin right at the
same period. Eorty years afterwards they too received the
rights of citizenship ; so that thenceforth the towns with the
rights of Latin colonies were all outside of the peninsula.
Those persons at thfs period who liad this status, possessed the
jus commercii with Romans without the jus connubii, whilst
the aliens enjoyed neither.
This threefold division was introduced Into the condition of
freedmen chiefly by two laws of the empire, — the lex Aelia
Scntia, passed in the year 757, (A. D. 4,) under Augustus, and
the lex Junia ISTorbana, passed raost probably in the year 772,
(A. D. 19,) nnder Tiberius. Erom the Consul whose name
stands flrst in this latter law, the freedmen with Latin right
were called Latini Junianl. A passage of the Institutions
just preceding one quoted by Jud^e Daniel, refers to these laws

1857.] In the Case of Dred Scott. 15
In the following terms : " they who were manumitted obtained
in some cases coraplete and legitimate freedom, and became
Roman citizens ; in other cases, an incomplete freedom, (min
orem,) and became Latins by the lex Junia IS'orbana; in
other cases still, an inferior, (or limited, inferiorem,) and by
the lex Aelia Sentia were ranked in the class of subjects or
dedltltll." We possess, especially in the remains of the Romun lawyers,
pretty full accounts of the contents of these laws, and number
less references are made to them. Avoiding all unnecessarv
details we give a brief statement of their substance, so far as
they affect the condition of freedmen. The lex Aelia Sentia
created a class of freedmen without citizenship, who had the
status of ' peregrini dedititii,' or aliens that had given them
selves up in war, but were not enslaved. This class comprised
such as, when slaves, had been unruly or dangerous charac
ters. Those who had been put into bonds by their masters, or
had been branded, or handed over to fight as gladiators or with
wild beasts, and were afterwards manumitted by the same or
by another master, belonged to this class. They had what
Gaius (inst. i, § 13) calls pessima libei-tas, ihat is, they were
almost slaves, and in some respects, worse oft" than the
slaves themselves. They could not inherit by will, nor, accord
ing to the opinion of most lawyers, make a will, nor did any law,
decree of the senate, or constitution of the emperor, open to
them Roman citizenship. They were prohibited from dwell
ing In the city or within a hundred miles of it. If they vio
lated this enactment, they and their goods were to be sold on
the condition that they could not be kept as slaves at Rome,
or within a hundred milesof the city, nor be manumitted; and
if manumitted, they were to pass from their masters, and be
come slaves of the Roman people. Such was the severity
with which this ' classe dangereuse ' was treated by the laws of
the empire.
The same laws prescribed that the freedman who was under
thirty years of age could acquire citizenship only by a certain
process, in default of which, if not belonging to the class
named above, he became in his civil status a Latin. The

16 Opinion of Judge Daniel, [Aug.,
lex Junia JSTorbana followed up this idea, and determined the
condition of this class of freedmen more fully. Gains discrim
inates them from the highest kind of freedmen, who became
Roman citizens, as follows : " he in whose person these three
circumstances concur, that he is over thirty years old, belongs
to his master ex jure Quiritium, and is freed in a regular and
legal way of manumission, i. e., by the vindicta, by census, or
by will, becomes a Roman citizen, but if any one of these
requisites is wanting, he will be a Latin." To explain the
latter part of this passage, we need to remark that besides the
old and formal modes of manumission, it would frequently
happen in the later times of the republic, that a master declar
ed his slave free in an informal way, before his friends, or by
letter, or at the table. Such.a kind of manumission took away
the master's power over the slave, but did not make him a
freeman. The master could not revoke the act, but the per
son liberated, was still, in the eyes of the law, a slave, though
a slave of nobody. This mtist have been the principal source
from which freedmen with Latin rights were drawn, and hence
the Junlan law is said to have given liberty to them, whilst
theyhad been regarded as slaves before. (Gains i, § 13.) As
for persons not yet thirty years old, it may be added that they
could attain to complete liberty and citizenship, by the form
called vindicta, provided the reason for the manumission was
approved by a council called by the manumitter. Such a coun
cil by the lex Aelia Sentia, should consist at Rome of five sena
tors and five grown up eqnites. Such a slave could also attain
to Roman citizenship by testament, if the master being insol
vent declared him free, and left him his heir, in which case
he would assume the debts of the deceased. Slaves thlrty
years of age or over, were freed and became citizens with
much less formality.
The freemen with Latin rights, are expressly declared by
one of the principal authorities (Gaius ill, § 56) to be as free
as if they had been free-born Koman citizens, who had joined a
Latin colony and become Incorporated into it. And yet from the
same authority, we learn (i, § 23) that they could not make a
will, nor inherit by the will of another, nor be appointed by

l^-'''7.] In the Case of Dred Scott. 17
a will to the office of guardian. It would seem from this that
their jural couditiim was somewhat Inferior to tliat of colo
nists with Latin rio-hts.
The most favorable circumstances attending tlie position of
this kind of freedmen, was the facility with which they conld
emerge into Roman citizenship. The ways in which this, priv
ilege could be obtained are described in a fragment, of Ulpian,
(Tit. 3.) The emperor could grant it by special f^ivor. The
laws bestowed it for a variety of reasons ; thus, a Latin freed
man, having married a Roman or Latin wife and raised ujj a
child a year old, could with his family acquire citizenship on
an application to the president of the province ; or he could
gain the same boon for himself and his children, if over
thirty at his first liberation, by another and a formal manu
mission ; or the privilege would follow a ce'rtain period of ser
vice in the Roman night police, (vlglle.^,) or the construction
of a ship of a certain size, and the transportation of grain to
Kome during a certain number of years.
Such, then, were the three classes of freedmen constituted
by the laws of the empire. Theso laws continned in force
until the times of Justinian, but we have reason fo believe
that they had long before become very unimportant, and a
mere incumlirance to the statute book. Thus -^dien the Em
peror Caracalla, for financial purposes, gave clti--^enshlp to all
the exlstino- inhabitants of tho empire, there Is no doubt that
the two inferior classes of freedmen, of v.-hlch we have spoken,
mnst have been included In the decree. ThciO classes then, for
the time, wholly" ceased, aud could never afterwards have
attained to any considerable numbers. It was then, wo sup
pose, because this part of the lav.- had lost its practical import
ance, that it was formally abolished by Justinian.
Our brief and necessarily imperfect sketch would be quite
incomplete, did we not say a word upon two points Involved in
Roman manumissions, — tlie restrictions on t'he right of manu
mission, and the hold which the patron still had upon the
freedman. 1. Wc are not aware that manumission was restricted by .any
law uuder the republic, but as soon as the empire began, this

1,S Opin-ion of Judge Daniel, [Aug.,
poUcy seems to have Influenced legislation. The lex Aelia
Sentia forbade a master under the age of twenty to set a slave
free, unless by the advice of a council and in a formal way.
But the most important restriction was contained in the lex
Euria Caninia, passed four years after the hiw above men
tioned, by which the number that could be liberated by testa
ment was rairmtely defined. If the deceased owned more
than two and less than ten, he could set free one half of fhem,
if between ten and thirty, a third, between thirty and a hun
dred, a quarter, between one and five hundred, a fifth part, and
never more than one hundred. The emperor Tacitus, — In vio
lation of the law, it would seem, — freed all his slaves at Rome,
amounting to within one hundred. Upon fhe other modes of
liberation, excepting that by testament, no restriction was
imposed. 2. In regard to the obligations of the freedman towards his
patron a very long chapter might be written, but it is not here
called for, since nearly the whole of this part of Roman law
o-rew up under the empire. We Avill content ourselves with as
few words as will sufiice to make this apparent. The rights of
the patron grew out of the prior very close connection between
the master and his fam.ily. These rights may be arranged
under two heads, — the patron's right to be treated with respect
and kindness, and his right to be ono of the freedman's heirs.
These rights generally devolved on the patron's children, but
did not affect the posterity of the freedman.
First, then, during the republic, it has not been made to
appear that the law prescribed any penalty for neglect or in
sults oftered by a freedman to his former master. The relation
seems to h.ave been left to tlie good feeling of the parties,
although its sacredness was acknowledged. Instances from
inscriptions can be produced of ungrateful freedmen being ex
cluded from the family sepulcher, to which others, guilty of no
such wrong, wero admitted. In the early times of the empire,
a patron, as It seems, could banish a freedman who had Injured
him to the distance of a hundred miles from Rome.""" And
* Tacitus, Annal. xiii, 26.

1857.] In the Case of Dred Scott. 19
afterwards corporal punishment could be inflicted on snch
offenders by order ofthe president of tho province; nay, by a
constitution of Coiumodus, they might bo reduced again, in an
extreme ca.-;o, to slavt-ry.*
In the second place, as to the patron's right of being an heir
of his deceased freedman, we have alreadj^ seen tluit the twelve
Tables conceded this only in case the freedman died intestate,
without an heir of his own, (a suas haeres^ jVfi'-r-ivards the
praetor's edict altered this Injustice, as Gains calls It, and when
the freedman left no children of his body, assigned half of his
estate to liis patron. The legislatiou of the empire enlarged
in some degree the rights of the patron, particularly by the
noted lex Papia Popp.aea, of which we have already spoken.
Tlius, if the freedman died worth one hundred thousand sester
ces or over, and left not more than two children, his pat
ron came in for a child's portion. As a Juulan freedman could
make no will, his patron was of course his heir.f
What has been said, although by no means pretending to give
a complete view of the status of freedmen, is enough to estab
lish the following points :
1. That the power of a Roman citizen to confer on a slave
the privilege of freedom, involving the rights of citizenship,
was unrestricted until the end of the republic. Just what
Jud"-e Daniel denies is true — -that emancipation then conferred,
as a matter of course, the status of citizenship. Judge Daniel
(p. 477 of the report of the decisions) thinks it " difficult to
conceive by what magic the mere surcease or renunciation of
an intere.st in a subject of property by an individual possessing
that interest, can alter the essential character of that property
with respect to persons or communities unconnected with snch
renunciation." But any Koman master's renunciation of inter
est in his slave, who was his property, made him a citizen, until

*Ti)e amount of assistance which the freedman owed to his former raaster
personallv,  not to his heirs,— called openie officiales, was often determined by
the oath or stipulation of the freedman, and if not, by custom or the nature of
the case. Tlie rcfu-al to render due assistance gave nse to a suit called opera-
rum actio. See the Digest, 38, Title 1.
4 Compare Gains, 113, § 5.5, seq. for succession to the est-ritc of a freedman with
Latin ri"-ht, aud for the g.^neral subject Dig. 3S, Tit. 2, de bonis libertorum.

20 Opinion of Judge Daniel, [Aug.,
the end of the republic, and iu many cases for centuries after
ward. Judge Daniel asks whether "it can be pretended that
any individual in any state, by his single act, can create a
citizen of that state." If we comprelicnd his meaning, the
Roman manumitter constantly created a citizen of Rome.
On turning to the exeoUont work of Prof Lange, of Prague,
upon Roman antiquities, published but a few months ago, we
find him speaking of " three forms In which the pater famlllas
could give the slave freedom, -and at the same time citizen
ship," — as if he had provided beforehand against Judge Dan
iel's opinion.
2. It appeal's that the person thus liberated, if he possessed
landed property, could vote from very early times, and that for
two centuries and a half before the end of the republic, all
regularly manumitted persons had the right of suffrage in
the tribes.
3. It appears that restrictions on manumission, the enlarge
ment of a patron's rights, and the bestowment of an inferior
kv\\ of liberty on certain descriptions of freedmen, were
measures of the empire after Roman liberty was nearly
extinct. 4. It appears that the legislation of Justinian in bringing
all freedmen to one level, only abrogated laws and oveiturned
a complicated system of decisions founded on them, which had
become of little or no practical Importance.
5. It is beyond ejuestlon that the sons of freedmen (that is
of freedmen who were citizens) were free-born. In fact, these
were tho stock from which many of the ];)riiicipal citizens of
I'.ome, under the empire, originated. Tacitus (Annal. 13, 27)
puts into the mouth of Senators the assertion, that "plurimis
Eqi'itnm plerisque Scnatorlbus non aliunde [I. c. from no
other than freedmenj originem trahi."
Thus it is evident that the "prorid title of Roman citizen
as contradistinguished from lower grades of domestic residents,
was" not "maintained throughout the republic, and until a
Lite ]jerIod of tho eastern empire." Judge Dauiel has iiilsun-
dor.itood Gibbon, as he has misunderstood the Institutions of
Justinian. Gibbon, in the passage extracted at the beginning

1857.] In the Case nf I)r,:d Scott. 21
of our Article, can mean nothing more than that tho disfinctions
in the class of freedmen were oljlilerated by the legislation uf
Justinian. Ho coin;iarod not tlie rciiublie imd the empire, but
tho dawn of the empire with its decline. Gibbon had the
works of tho lawyer.s on his table, and co;;ld read Latin, and
must have known tlmt some freedmen were called civcs Roma
ni by writers who fionrLshed centuries befbre Jintinian was
born. We should not have pursued this subject at so great a length,
nor laid bare the ignorance of a Judge of our highest Court
on a subject where he ought to speak ex cathed.ra, did we not
believe, that the authority of one who has given his sanction
to a most flagrantly wrong decision, deserves to be weakened.
He has appealed to Koman institutions as an analogy in snj)-
port of what we believe to be bad law. We have shown that
the analogy falls entirely, — in fact, that it is against him. We
wish that he and all other judges as well as statesmen, would
study both ancient aud medlseval slavery, and the transition
from it into freedom, with thoroughness and candor: we should
have no fear what would •'be the result.

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