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EMANCIPATION AND CITIZENSHIP.

Few subjects in the early constitutional history of any people possess a more enduring interest or have occupied a larger share of the historian’s attention than that of status. The pictures of early England preserved by the Domesday Book and the Chroniclers exhibit personal classifications whose manifold distinctions are as difficult of accurate discernment as are the well-nigh infinite gradations of those fetters holding land and population in a correlated bondage: servus, colibertus, cotarius, villanus, sochemannus, liber homo, gesith, thegn, unroll before the gaze like folding ridges in a landscape too distant for the observer to grasp aught save the most general outline. When the United States, however began its independent career, public law recognized amid the native population joined to form a new govenrment two chief classes only the slave and the free; members of the latter class being termed in the treaty of peace¹ with Great Britain, in the Articles of Confederation, and in the Constitution, citizens, while the slave appears in this last named instrument as an “other person”—a phrase due not alone to a wish that our organic law shall be lacking in at least the term slave, but also to broad-minded statesmanship of constitution-framers, largely from the South, who confidently hoped to see within their own day personal slavery disappear and with it the odium of political class-distinction. Yet the subsequent course of history not only failed to realize so humane a forecast but was destined to show a determined tendency of quite another aspect. Far from simplifying the question of constitutional status this tendency, which made itself felt within less than a score of years after the new government had begun, aimed to introduce a third class into the political family. Manumission, it was contended, might, indeed, give freedom to the bondman, yet the stain of his former condition must be considered ineffaceable—to citizen status neither the freedman nor his descendants could ever attain. Touching

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no doctrine of any description did public sentiment more sharply divide than upon this one whose far reaching consequences were readily apprehended. In the following pages an effort will be made to trace the development, in judicial opinion, of this new position; in doing this we shall necessarily seek to test the grounds upon which court decisions denying citizenship to free Africans were based; and, since these grounds consisted mainly of an appeal to supposed analogies in history, the Constitution² itself nowhere defining, or giving Congress the power to define, citizenship, we shall further undertake to glance briefly at the condition assigned to emancipated slaves in Roman law, whose example, in this respect, came frequently before the judges.

Who are the citizens spoken of in the Constitution, and termed in the preamble to that instrument “the people of the United States?” Plainly, on this point there is no controversy they were those persons belonging to any class then recognized in a state of the Union or by Congress of the Confederation as an integral element in the government³; no subsequent development of of opinion can affect the matter. Nor have records of the time

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left us in any doubt touching what persons were thus recognized. It is evident, nevertheless, that the presence of the native Indian, together with the enslaved and the freed African, gave rise at the very outset to necessity of definition. The Indian, segregated in his tribe and not responsible for the support of government, was easily laid aside as one “not paying taxes;” how should it be with the slave? Could he be reckoned among the population as an inhabitant, or should he be accounted merchandise? Again, free men of European descent, excluding aliens, were, of course, white citizens; were there other free men who, being of African descent and not white, were, nevertheless, citizens? To clearly appreciate the significance of the attitude assumed toward these questions by the Continental Congress it becomes necessary to recall the use made at the period under consideration of the term “inhabitant.” To those first summoned to organize revolutionary governments exact nomenclature was a matter of quite secondary importance; within a colony’s limits all inhabitants⁴ adhering to the proposed new order were promptly claimed as owing allegience; subjects no longer acknowledged a royal master, while citizens had scarcely as yet emerged into the light of public law. Thus it was that, following the new method of thought, the committee appointed by , the Continental Congress to prepare articles of union, reported (July 12, 1776)⁵ an article touching money requisitions in these words: “all charges of war and all other expenses that shall be incurred for the common defense, or general welfare, and allowed by the United States assembled, shall be defrayed out of a common treasury which shall be supplied by the several colonies in proportion to the number of inhabitants of every age, sex, and quality, except Indians not paying taxes, in each colony, a true account of which, distinguishing the white inhabitants, shall be triennially taken and

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transmitted to the assembly of the United States.” On July 31st it was moved to restrict the basis of levy to “white inhabitants” on the ground that, slaves being property only and not state-members, the proposed plan would tax large slaveholding communities on a double basis of wealth and population.⁶ But the motion was unsuccessful, and the negro slave was suffered to remain as an element in the population, though, on October 14, 1777, land became the basis of requisitions in place of persons.⁷ With military levies, on the other hand the case stood far otherwise; for here those to be enlisted must, of course, come chiefly from classes who had not known slavery. Accordingly it was agreed that requisitions for troops be laid “in proportion to the number of white inhabitants;” though from North Carolina, Virginia, and more than one Northern state, black regiments, recruited of both slave and free elements, bore a brave part, nor did the Virginia legislature hesitate to acknowledge the value of their services.⁸

In the seventh of the articles of union submitted to Congress July 12, 1776, a general freedom of intercourse among the United Colonies was attempted to be secured: “the inhabitants of each colony,” ran the provision, “shall enjoy all the rights, liberties, privileges, immunities and advantages in trade, navigation, and commerce in any other colony, and in going to and from the same, from and to any part of the world, which the natives of such colony enjoy.”⁹ Bearing in mind the use made by individual colonies of the term “inhabitant,” it is clear that Congress here attempted to place all thus designated by any state as forming part of its people (excluding, of course, the slaves) in as favorable a case in every other state as the most favored (free) native of the latter—both “native” and “inhabitant” being practically the equivalent of state-member. In its final form (as approved November 13, 1777) this clause provides that the free inhabitants of each of these states, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the several states;” the word free is here prefixed to “inhabitants,” while “natives” now appear as “free citizens.” For the change in

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phraseology a reason is easily found in the evident possibility that under the terms “inhabitant” and “native” slaves might be held to be comprised; hence the qualified expression “free inhabitants,” narrowing the privileged classes (as probably intended) to white state-members together with Africans not in slavery. In this sense, indeed we find the words employed by Dr. Rush, when addressing Congress August 1, 1776, in favor of voting in the federal assembly on a basis of state-population: “the voting by the number of free inhabitants,” said Rush, “will have one excellent effect—that of inducing the colonies to discourage slavery and to encourage the increase of their free inhabitants,”¹⁰ these free inhabitants of course, included freedmen. The term, however, was not happily chosen in the Articles, since, as it might be construed to apply also to aliens, these latter, as Madison complains (Federalist, No. 42), would be capable of being practically naturalized by any state in every other part of the union. In the words “free citizens,” however, we have, plainly, a reminiscence of the free members of an English town corporation—the citizen clothed with privileges belonging to his local franchise. But in whatever manner we may construe these phrases, a sure interpretation of the meaning assigned to them in the thought of the Continental Congress is conveyed by the notes given June 25, 1778, on the occasion of two motions made by South Carolina’s delegates to alter article IV so that it should read: “the free white inhabitants of each of these states, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all the privileges and immunities of free citizens in the several states according to the law of such states respectively for the government of their own free white inhabitants.” These changes were similar to an amendment agreed to on February 26, 1778, by the legislature of Georgia, though not, apparently pressed on the attention of Congress. The motions made by South Carolina were at once rejected by the decisive vote of eight states against two with one divided. Delegates from eight states, therefore, insisted that their black citizen-inhabitants be equally received as citizens throughout the Confederation, nor would these delegates suffer black citizens to be governed, in this regard, by laws enacted for the regulation of white persons merely. Finally, April 18, 1783 (the war being now ended and funds to maintain the administration being alone needed), Congress resolved that such charges be defrayed “by the several states in proportion to the whole number of white and other free citizens and inhabitants of every age, sex and

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was adopted no barrier lay between the free African and citizenship in the State of Virginia where law and statecraft then found a more assiduous following- and had reached a higher level than elsewhere within the Union.

Again, the freedman’s position in New York will be clearly seen in the following extract from the minutes of the Council of Revision at a meeting attended by Chancellor Livingston, Governor Clinton, and Mr. Justice Hobart of the Supreme Court, March 21, 1785; a bill for the gradual abolition of slavery being laid before the Council the following objections, reported by the Chancellor, were adopted:¹²

“1. Because the last clause of the bill enacts that no negro, mulatto or mustee shall have a legal vote in any case whatsoever; which implicatively excludes persons of this description from all share in the legislature, and those offices in which a vote may be necessary, as well as from the important privilege of electing those by whom they are to be governed; the bill having in other instances placed the children that shall be born of slaves in the rank of citizens, agreeable both to the spirit and letter of the Constitution, they are as such entitled to all privileges of citizens, nor can they be deprived of these essential rights without shocking those principles of equal liberty which every page in that Constitution labors to enforce.

“2. Because it holds up a doctrine which is repugnant to the principles on which the United States justify their separation from Great Britain, and either enacts what is wrong or supposes that those may rightfully be charged with the burdens of government who have no representative share in imposing them.

“3. Because this class of franchised and discontented citizens, who, at some future period, may be both numerous and wealthy, may, under the direction of ambitious and factious leaders, become dangerous to the state, and effect the ruin of a constitution whose benefits they are not permitted to enjoy.

“4. Because the creation of an order of citizens who are to have no legislative or representative share in the government, necessarily

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lays the foundation of an aristocracy of the most dangerous and malignant kind, rendering power permanent and hereditary in the hands of those persons who deduce their origin through white ancestors only . . .

“5. Because the last clause of the bill, being general, deprives those, black, mulatto and mustee citizens who have heretofore been entitled to a vote, of this essential privilege, and under the idea of political expediency, without their having been charged with an offense, disfranchises them in direct violation of the rules of justice against the letter and spirit of the Constitution and tends to support a doctrine which is inconsistent with the most obvious principles of government, that the legislature may arbitrarily dispose of the dearest rights of their constituents.”

The foregoing sentences, let us not forget, represent the deliberate opinion of two of the most eminent statesmen our country has produced, and whose profound acquaintance with their own laws and government can be questioned by none.

Once more, in New Jersey, a family of negroes were brought before the Supreme Court praying their freedom at May term 1791, they having been duly enfranchised some years previously; they were now claimed as slaves because they had afterwards submitted to a hiring out; the judges, ordering their release, directed that they “be discharged as free citizens;”¹³ while, in [t]he court minutes of 1794, it is recorded that “a negro man was admitted to vote who had no legal residence, and his declaration that he had been manumitted in another state was received as sufficient proof of his being entitled to a vote.”¹⁴

Despite these firmly settled aspects of opinion, legislative, executive and judicial, a desire rapidly gained ground in some commonwealths to banish from their territory the slave become through emancipation a free man, as well as to exclude by a positive inhibition the crossing of their borders by any free persons of the African race. But were any such persons endowed with the privileges of an inter-state citizenship, how could they be excluded in view of the constitutional guarantee that “the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states?” That men of color were held to be actually citizens in many parts of the Union was undeniable. The sole recourse then for the advocates of the new doctrine lay in announcing that whatever condition might be reached by a freedman under local state law or custom, it doubtless must be considered powerless to

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give him a standing under the national Constitution, if, indeed, the privileges secured to such a one by reason of his freedom in any state could be justly denominated citizenship; and that it could be, was, furthermore, flatly denied. We proceed to a brief review of the decisions establishing these doctrines.

June 19, 1882,¹⁵ the Kentucky Court of Appeals dismissed a suit for freedom brought by one Amy who claimed that she had become a citizen of Pennsylvania under the Confederation by the terms of the abolition act passed by that state in 1780 providing that slaves not registered should be free; Amy had not been registered, and had, moreover, subsequently gone to Virginia whose statute law during her residence permitted, as we have seen, free persons of color to be citizens. Accordingly, it was contended on behalf of Amy, though her counsel unfortunately omitted to cite Virginia’s statute or any other evidence that persons emancipated were state citizens under the Confederation, that free entrance to Kentucky and a right to sue in its courts belonged to her under the national Constitution. Still the judges thought that since free persons of color were the subjects of many local restrictions, and since, also, Congress had only provided hitherto for the naturalization of white persons, no one of color could, through manumission, become a citizen; moreover, since at Rome “citizens were the highest class of subjects to whom the jus civitatis belonged and . .[ .] the jus civitatis conferred upon those who were in possession of it all rights and privileges civil, political, and religious,” therefore no one could “in the correct sense of the term be a citizen of the state who is not entitled upon the terms prescribed by the institutions of the state to all the rights and privileges conferred by those institutions upon the highest class of society.”¹⁶ This denial of colored citizenship on the ground of the numerous civil restrictions imposed upon freedmen had been already elaborated at great length during the course of the debate on Missouri’s admission—December, 1820. It was there maintained that “the term citizen could not with propriety be applied to any one unless under these circumstances; that he should be possessed of all at least of the civil rights, if not of the political, of every other person in the community under like circumstances, of which he is not deprived for some cause personal to himself . . .

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with regard to the individuals of this class (the freedmen) the Constitution of the United States had no reference to them or their rights real or supposed.”¹⁷ The fallacies involved in such a view, however, were clearly shown by Mr. Eustis of Massachusetts in his searching address December 12, 1820. “What rights,” said he, speaking of the freedmen, “do they continue to enjoy and exercise? We answer, all the broad and essential rights of citizens—the right, in common with the whites, to hold real and personal estate; the right of trial by jury; the right to the writ of habeas corpus and, in this government (Massachusetts), the elective franchise.” Laying out of view the right to vote, not an indispensable element of citizenship, since property or other qualification may lawfully narrow it, we find this definition of what fundamental privilege belongs to one as a citizen, long afterward endorsed by the Supreme Court of the United States in a carefully considered and unanimous opinion touching interstate citizen rights under Article IV of the national Constitution;¹⁹ “The clause plainly and unmistakably secures and protects the right of the citizen of one state to pass into any other state of the Union for the purpose of engaging in lawful commerce, trade, or business, without molestation. To acquire personal property; to take and hold real estate; and to be exempt from any higher taxes or excises than are imposed by the state upon its own citizens.”

The conceptions entertained by the majority of the Kentucky court in Amy v. Smith²⁰ touching state citizenship were shown to be erroneous by a dissenting member,—Mills, J.—whose opinion correctly outlines the subject in its varied aspects; with the supposed parallel found by the judges in the law of Rome we shall deal later. In closing our brief notice of this important case we should not overlook a formal opinion given by the attorney-general of the United States William Wirt—only a few months previously,²¹ that in Virginia free persons of color are not citizens of the United States within the intent and meaning of the acts relating to the foreign and coasting trade; the learned and accomplished attorney-general based his view upon the civil restrictions already noted; but he did not, however, explore our early constitutional history nor did he seek to produce the statute law of his own state of

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Virginia which law, as the Virginia court of appeals showed in its carefully considered opinion rendered in Barzizas v. Hopkins,²² in 1824, still persisted in defining citizenship by the terms of the statutes we have already noted; it continued accordingly to be the heritage of all free persons; so firmly, indeed, had the law touching this question been settled that when the “Chesapeake” incident occurred in the waters of that state in 1807, the President of the United States, one of the most illustrious of all Virginians, declared, when issuing his proclamation July 2, 1807, touching the seizure by the British ship “Leopard” of three Americans (two of whom were negroes, that the outrage had been committed upon “native citizens of the United States!”²³ Nor did Virginia hesitate to order its militia to be in readiness for the defense of American honor insulted in the persons of these dusky citizens.

As evidencing, however, the fast-changing aspects of opinion in high places which we are seeking to trace, we note in the next place the celebrated decision made by the Supreme Court of the United States at its February term 1825 in the case of the “Antelope,”²⁴ pronouncing the African slave trade not contrary to the law of nations; this utterance, well termed by John Quincy Adams the Court’s “most awful decision,”²⁵ was sought to be justified through a dictum uttered by Lord Stowell in the case of Le Louis, December 15, 1817; ²⁶ but our judges, in thus adopting the atrocious sentence of a single judge sitting in the English high court of admiralty, failed to remark that the supreme tribunal in admiralty appeals of the British kingdom had previously, on March 17, 1810,²⁷ speaking by Sir William Grant in the celebrated cause of the Amédie, given its unanimous opinion that the slave trade was contrary to universal law and could support no rights under that code! Sixteen years after the Antelope case, our Supreme Court did, indeed, in the case of the Amistad,²⁸ pronounce a judgment, grounded upon the unanswerable arguments of Mr. Roger S. Bal[d]win and Mr. John Quincy Adams, which, in freeing a band of stolen Africans claimed to be Spanish slaves, virtually repelled the Antelope doctrine.

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The principles of decision announced in Amy’s case, though destined to prevail ultimately in more than one forum, failed to influence the Supreme Court of Tennessee in 1834; here, in the case of Fisher’s negroes v. Dabbs,²⁹ Catron C.J., while noting the inferior condition in civil life of most freedmen, nevertheless justly characterized manumission carried out pursuant to law as a proceeding strictly public in its nature and one through which the community solemnly adopts a new citizen: “it is an act of sovereignty, just as much as naturalizing the foreign subject. The highest act of sovereignty the government can perform, is to adopt a new member with all the privileges and duties of citizenship. To permit an individual to do this at pleasure would be wholly inadmissible. How or when the state assents to the contract of manumission, whether before or after its execution, is beside the contract,” etc.

In sharp contrast with this exposition of Chief Justice Catron of the Tennessee Supreme Court appears the charge delivered to a Connecticut grand jury three years later, July 1837, by Daggett, C.J.³⁰ who, reviewing at length the various disabilities and social inferiority of free colored persons, declared that these were not citizens and that, consequently, a Connecticut statute seeking to exclude from instruction (within the borders of that commonwealth) any persons of this class coming from other states, was valid. In such a view the Chief Justice seems to have lacked the sympathy of the remaining members of his court,³¹ but he found a contemporory supporter in Chief Justice Gibson of Pennsylvania who, in the case of Hobbs v. Fogg,³² determined earlier in the same year, announced, though without a trace of historical precedent being adduced, the deliberate position that a freedman could not vote as a Pennsylvania citizen because it was inconceivable that he could have been regarded by the founders of that commonwealth as a citizen in early days; thus assuming the very point sought to be proved. The same year, too, witnessed the decision by the Supreme Court of the United States of the important case of the City

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of New York v. Miln;³³ the court, in sustaining a New York statute directing shipmasters bringing passengers from abroad to report them, etc., gave no little comfort to the doctrine that a state may regulate as it will the admission within its borders of all persons deemed objectionable: “in our view,” said counsel on the part of New York, “the law in question is altogether a police regulation, as much so as laws prohibiting entrance into a walled city after dark; laws prohibiting masters from bringing convicts into the state; or the laws prohibiting free negroes from being introduced among slaves.”

The constitutional validity of these sentiments came directly before the Supreme Court of Tennessee at its December term held in the following year, and the principles laid down by Chief Justice Catron were now cast aside.³⁴ One Claiborne, a free negro, being indicted for entering the state, claimed as a Kentucky citizen to be protected by the national Constitution.³⁵ The attorney-general of Tennessee, arguing in support of the exclusion law, summed up with great ability the various positions we have noticed, adding to them a characterization of the free negro as one to be constitutionally considered a mere “sojourner in the land,” neither a member of the commonwealth nor entitled to recognition by national law; he being only “allowed, usually by tacit consent, sometimes by legislative enactment, certain specific rights;” nor was the law of Rome it seems, more favorable, since in the standard lexicon of Forcellini, the Roman, is defined: “civis homo liber, urbis aut oppidi incola, et eodem cum ceteris jure utens;” thus at Rome citizens were characterized, said he, “by an equality of civil rights—eodem jure.”³⁶ But this unfortunate failure to apprehend a brilliant definition ignores the familiar fact that the same law under which Roman citizens lived was the jus civile which by no means gave equality of civil right, though its privileges were for members alone of the city-state.

Continuing his historical parallels applicable to the case, the attorney-general

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cites Pufendorf³⁷ and Vattel in their descriptions of the classes composing a state’s varied population in their day from these authors the doctrine is deduced that “undoubtedly, there may be in a state a class of people with limited privileges and immunities,

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who may still be called ‘citizens,’ but it is not in this sense that the word is used in our Constitution;” and we are referred to Niebuhr, and to Potter’s Greek Antiquities in order that we may learn how hardly the non-citizen fared at Rome and Athens. This conclusion of the attorney-general was adopted by the judges and may be said to mark the culmination of a judicial position which was destined nearly twenty years later to receive approbation at the hands of the Supreme Court of the United States in the case of Dred Scott v. Sandford, where Scott’s suit for freedom was repelled on the ground that on the face of the pleadings he could not be considered a citizen of the State of Missouri in the sense in which the Constitution of the United States regards a state-member and confers upon him interstate privileges and immunities, one of which privileges is that of suing in a court of the Union. The concurring opinions delivered in the same case,³⁸ too, affirm the recognition of African slavery in European public law which warranted,

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it is averred, the return to his lord of an escaped bondman and, furthermore, by way of emphasizing the freedmen’s position in a state as one resting on grace rather than on right, we are told, as a grave conclusion from well-proved facts of history, that never before Justinian’s bounty raised manumitted bondmen to burgess rank could the slave through merely gaining freedom hope to become a citizen of Rome.³⁹ Here the case against the black man may fairly be considered closed: denied all opportunity to contest his freedom in a court of the United States and rejected in local tribunals as not being a citizen under the national Constitution; told that his race might, in full agreement with the law governing international action among enlightened men, be delivered over to rapine and eternal bondage through the permitted success of the slave-hunting bandit—to the African it was plain that jurisprudence had exchanged its birthright for a bias merely political and careless of things fundamental. From so dark a picture whose realization would have resulted in creating an ever-increasing class destitute of civil hope, we turn to the more cheerful teaching of Roman law, the wisdom and clemency of which, undeterred by the severity of world-custom in the days when its auspicious growth began, opened a way for the rightless captive of Rome’s arms to reach every privilege granted the citizen and, in the end, to bear no small part in ameliorating the general lot of mankind.

We proceed, then, to enquire under what juristic conditions persons of free condition became slaves; in what manner the slave might lawfully gain freedom; and, lastly, what was the nature of the status which such freedom could bestow.

In earliest Rome the resident population exhibits a threefold division—patricii, clientes, servi. Of these the patrician alone is ingenuus—free born; the jus civile recognizes him as being sprung from parents united in lawful wedlock, and he can, therefore, in a sense denied to the client and the slave, claim his ancestors as patres.⁴⁰ The client is the fugitive-immigrant or the vanquished native seeking protection from among the patres: applicatio ad patronum; or he is, again, the domestic bondman no longer the victim

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of personal ownership and utter rightlessness, yet practically a subject of his former dominus now become patronus. To the ingenuus belonged jus optimum securing him home-right, family and tribal relations—civil and sacred, together with eligibility to office: “optima lege,” says Sigonius,⁴¹ “is mihi civis Romanus videtur qui domicilium, qui tribum, qui honorum potestatem est adeptus.” On the other hand, such participation in these as the client enjoyed came to him through membership in the patron’s familia: “clientes” says Aulus Gellius,⁴² are they “qui sese itidem in fidem patrociniumque nostrum dediderunt.” The slave—servus—is the free man made prize of formal war⁴³—bellum justum, or sentenced for crime to be sold;⁴³ until delivered through manumission, the descendants of an enslaved mother shared her fate. When a besieged town surrendered at discretion to the Roman commander, its inhabitants preserved freedom, indeed, yet with such measure only of public and private right as Rome might grant: “dediticii vestrii passuri,” says the Capuan ambassadors “to the Senate, 343 B.C., but, if taken by storm, all land, movables, people belonged to the conqueror as merchandise, and the inhabitants were sold: “mancipia” jure belli capta coronis induta veniebant.” So, in the case of Veii; “caede hostium ac direptione urbis opulentissimae est consumptus; postero die libera corpora dictator sub corona vendidit.”⁴⁷ Therefore it is that we find Dionysius remarking with no little pride that the Roman slave was obtained in a manner formally justified and honest: αο τῶν ιεραπόντων κτήσειϛ κατἀ τούϛ δικαιοτάτου γινόμεναι τρόπουϛ.⁴⁸

Stealing by a slave-trader of men savage or civilized could never form the basis of slave-title in Roman law: a piratis aut latrocinibus capti, liberi permanent.⁴⁹ It was the public enemy, seized as a trespasser⁵⁰ on Roman soil or overcome in battle, who became

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Rome’s property and not that of an individual until purchased from the state: “ea, quae ex hostibus capimus jure gentium statim nostra fiunt;⁵¹ adeo quidem ut et liberi homines in servitutem nostram deducantur,” etc., is the ancient rule still valid in Justinian’s day. Such, then, was the Roman slave in his origin and in the earlier stage of release as client. At a period, however, long antedating authentic history, the client has emerged into citizen-status although gaining, at the outset of this new era, but a limited exercise of citizen-right; he is thereafter a “libertinus civis,”⁵² one of the citizens “qui servitutem servissent,” and whose tribal and centuriate place, as a freedman, amid the Plebs is destined to exhibit sharp variations toward the Republic’s declining years. Laying out of view all such details in the history of freedmen’s status as quite outside our present purpose, we proceed to a consideration of manumission itself and its legal effect. Through reduction to slavery a human being becomes a Roman chattel; it was, accordingly, by Roman law, here giving effect to “jus gentium” that such a chattel’s condition might be changed. Hence manumission is the act of a citizen under the sanction of the public will, this latter element of the transaction being invoked through: (1) the process known as Vindicta⁵³ carried out before a praetor (who represented the state) and consisting in an open release of claim on the owner’s part; (2) registration on the census-roll of citizens “by the owner or with his assent, the censor here representing Rome; (3) the gift of freedom by testamentary⁵⁴ disposition, the Roman testament having, in early days, been witnessed by the assembled people “iisdem comitiis quae calata appellati diximus,” says Gellius, “et sacrorum detestatio et testamenta⁵⁶ fieri solebant;” indeed the modern witnesses to a will are but an image of the primitive ceremony. From having been a Roman chattel, the slave, with a

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disappearance of the force—manus—whose imposition deprived him of legal rights, was now free and moreover, Roman; hence he was a citizen whose status sprang out of a recognition of his enfranchisement by the “jus civile”—the citizen’s law⁵⁷ whose prescription must be rigidly followed. So Cicero writes: “neque censu, neque vindicta, nec testamento liber factus est, non est liber.”⁵⁸ Yet once free in lawful form, the bondman became civis: “libertate, id est civitate.”⁵⁹ The civitas thus acquired though limited in range, was yet clothed with the private rights of citizenship; these were, of course, of far greater value than the public rights which comprised eligibility to office jus honorum,⁶⁰ etc. The freedman was one of the Quirites: “una Quiritem vertigo facit,” cries Persius⁶¹ of the stable boy become a Roman with a turn (vertigo) given him in the vindicta proceeding and signifying that the world now lay open to him, the vindicta being the rod—ancient symbol of dominion—and here employed in a light touch upon the slave’s head: “liber esto” says the master, “atque abito quo voles.” Under Augustus and Tiberius several restrictions were laid upon manumission: (1) the lex Aelia Sentia (4 A.D.) assigned freedmen, who, as slaves, had been guilty of criminality, to no higher rank than could be reached by a surrendered enemy—dediticius; furthermore, were a slave less than thirty years of age or his manumitter under twenty, the vindicta process must be employed, and the approbation of a consilium obtained: “nam ea lex minores . . . annorum servos non aliter voluit manumissos cives Romanos fieri, quam si vindicta, apud consilium, justa causa manumissionis adprobata, liberati fuerint.”⁶² Some

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four years later the lex Fufia Caninia⁶³ forbade the freeing of more than a fixed proportion of one’s slaves, or of more than one hundred in any event, by testament. In the year 19 A.D. a supplementary enactment— lev [i.e. lex] Junia Norbana,⁶⁴—declared thos[e] attempted to be set free without observance of the Aelian Sentian regulations should be placed in a class similar to that occupied by colonials having Latin rank: “latini Juniana appellantur; latini ideo quia adsimulati sunt latinis coloniariis; Juniana ideo, quia per legem Juniam libertatem acceperunt, cum olim servi viderentur esse. . . . Latini vero multis modis ad civitatem Romanam perveniunt.” Thus, hereafter the law recognizes three classes of freedmen: Roman citizens, Latins, dediticii; these latter being excluded from residence at or near Rome itself and being without capacity of reaching citizenship. Such signal disabilities, however, arose from crime committed while yet in a slave condition; it was reserved for American statesmen and judges nineteen centuries later to ascribe similar brands of exclusion and non-citizenship to a freedman because he or his ancestors, being wholly inoffensive, had been stolen away by a cowardly slave-trader and sold as a bondman without color of even a barbarous right of conquest.

We are now in a position to appreciate the reforms touching citizenship instituted by Justinian. The emperor found, he tells us,⁶⁶ the three classes of freedmen still existing in his day, though the dediticius had become practically an obsolete factor (“in desuetudinem abiit”), nor was the class of Latini very much in evidence. These two divisions were, accordingly, done away and thus freedmen’s position once more made what it had been when Augustus introduced the modifications above noticed, and as tradition also represented it to have been at the beginnings of Republican Rome: “a primis urbis Romæ cunabulis.” Such social or civil inferiority, too, as the freedman might be subject to, was annihilated in attaching to manumission henceforth a right to wear the gold ring together with the noble jus regenerationis, το ποαλιγγενεσεσοαζ δοκαιον the

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birthright regained, natalium restitutio,⁶⁶ through which the slave, raised to a plane decreed all men by jus naturale, witnessed in his own person sure triumph at the last of a law unconfined by space or time.

Nor was the spirit of Roman jurisprudence to pave a way toward civil manhood for Rome’s slaves only. Even the night of the Dark Ages recognized a bondman enfranchised pursuant to solemn public regulation as a member of his state in the highest sense and the equal of all. That such an example played no small part in the destruction of slavery itself and the advent of modern civilization may be well believed; were other proof lacking, the wholesome fear shown by American slaveholders in the nineteenth century lest freedmen become citizen-members of their own commonwealths would sufficiently attest a fact which will hereafter be found weighed in the even balance of history with accusing precedents from both Pagan and Christian Rome.

Gordon E. Sherman.

Dinsmore Documentation  presents  Classics on American Slavery