2.	Concurrence of Justice Daniel

[Justice Daniel agreed both that the Circuit court had lacked jurisdiction over Scott's
cause of action and that Congress lacked power to abolish slavery in the territories. In his
discussion of the issue of citizenship, he provided this allegorical commentary on Roman
slavery.]

The institution of slavery, as it exists and has existed from the period of its introduction
into the United States, though more humane and mitigated in character than was the same
institution, either under the republic or the empire of Rome, bears, both in its tenure and in the
simplicity incident to the mode of its exercise, a closer resemblance to Roman slavery than it
does to the condition of villenage, 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 United States.

But with regard to slavery amongst the Romans, it is by no means true that emancipation,
either during the republic or the empire, conferred, by the act itself, or implied, the status 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 subjects or of the lower grades of
native domestic residents, was maintained throughout the duration of the Republic, and until a
late period of the eastern empire and at last was in effect destroyed less by an elevation of the
inferior classes than by the degradation of the free, and the previous possessors of rights and
immunities civil and political, to the indiscriminate abasement incident to absolute and simple
despotism.

By the learned and elegant historian of the decline and fall of the Roman Empire, we are
told that "In the decline of the Roman Empire, the proud distinctions of the republic were
gradually abolished; 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 possession of hereditary wealth or the memory of famous ancestors. He delighted to
honor with titles and emoluments his generals, magistrates and senators, and his precarious
indulgence communicated same rays of their glory to their wives and children. But in the eye of
the law all Roman citizens were equal, and all subjects of the empire were citizens of Rome.
That inestimable character was degraded to an obsolete and empty name. The voice 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 a 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 Caesars had
scrupulously guarded the distinction of ingenuous and servile birth, which was decided by the
condition of the mother. The slaves who were liberated by a generous mater, immediately

85