The national era. [volume] (Washington [D.C.]) 1847-1860, 1854-09-28

OPINION OF JUDGE McLEAN-LAST REF
UGR OF LOCALIZED SLAVERY Concluded.
To the Friends of A1nsrioan Liberty:
BIZ the authority of what Law, or upon what
PRINCIPLES of law, does Mr.. Justice Mclean de-
eide that slavery, in the absence Of any statute
Law creating it, and opposed, as it is, to Z" all
the principles Of the common law Of England, %
6ncluding natural or divine law) can become
legaiized-and on no other basis than that of
usages OF long continuancean He mus. do
this either By authority of divine OF natural
Law, Of common law, or of statute Law. Can
he Go either?
Does the common law Of England any
where sly that "usages opposed TO all its own
principles" can become legal by 81 long con-
tinuaaosq" IL Gays exactly tie reverse Of
this, 2s we shall soon sec. Does the statute
law Of any slave State provide that "usages
Of long continuance" are equivalent to law,
when there are no statutes against them No
one will pretend this. Whence, Thea, the SOW
ereign authority of long continued ussge!"
Docs il rest on Itself, uithOut any statute to
authorize il, and against common lawi This
would be making ",sdgs" Independents of
statute Law, and paramount to common law,
including tho law Of nature, the law OF jus
tice, the law OF Cod Is MIR. Justice Mclean
prepared to defend such positions He has
already been driven to ssy some very remark
able th;rgs in this connection.
lie says thai Slavery is opposed 10 all the
principles OF thu common Law of England;o
which is as much 90 to say, that it is contrary
10 the las of nature, the law of justice, the law
os Cod, which is avowcdlv the first "priDoiple
of the common law Of Engiandn Then he
saws that slavery is founded on usage of
long continuance having the "force of law"
that "it arises from long-reccgnised rights, CON-
traycned by no Legislative ocsion )" that "thie
Is tha source OF many Of the principles Of the
co.nmon law"-and that this for century
or more, may constitute slavery
Putting all this together, we cannot help
sesi3g that his Honor makes out 8 case in
Nh:ch according TO HIS own lsw-logic, "nsGny
OF the principles Of the coniuon law" arc
derived from SECURES" that gives rise TO what
is opposed TO al the principles Of the CON-
mon Law" Ii this looks little Ike jargon,
ana sels-cOn,radction the fault mus. no. be
charged upon any want Of clearness Of vision
aaG powers of argumeat in that distinguished
juris5 bus solely upon the inherent difficulty
Il reaching conclusion consistent with the
safety Of our glorious Union, which no asspres
W., II the ssrno document, could never have been
oemen.ed without tho stipulation in favor Of
negro-caschingi Necessity, it is raid, know
no law; and the necessity Of propitiating the
South illustrates the max1,.'
LIT us now see what the comr10n law says Of
tho authority Of "ussge Of long continuance"
VIXEN @o2pos.d" 10 the Jaw Of nature and Ct
Justice" the common Law CT England"
" If Il be fond that former decision is
maEiies.ly absurd and unjust, it is declared,
not that sach Fonsepce was bad law, bat that
i. was nor l2wD Evil customs ought 10 be |
abolished '-Lytilc.on.
Every use usage OF custom is eSi!, which !
rs aS&iGs. reason. Coke.
Where the foundation is weak, the s.ruc- |
ture fals"-Noges
What is invalid from the beginning, con-
not be made vaiid by length Of time."-ISid.
On these Baxims it was tina. Lord Mans
field, in the S3mmcTsett c1se, decided againss
the legality ot slavery ia England, reversing
tho decisions Ct past generations Of judges rs
veil IS his own recent ores, IN which be had
affirmed TIE legality q slavery in England,
on precisely the eeme g:Oand that Judge Nc
Lean DOW afirrns The legality Of slavery ia Ken
tucky, w: Usage OF long continuance, coun-
terTaiied by no legislative action" Tho cases
are substantially parallel. Lord Man field,
surrounded by o corrected public sentiment,
AID led to sober secOud Thought, reversed his
decision, and Won deathlcss reDc6n, as Mr.
Jast;cs Mclean may get dc.
Already he has taken more than half tho
s'es', by admitting, Us Lord Manifold had Ect
l'oca in he habit Of DOING that Slayery is
opposed to al she principles Of the common
las.' And he has gone further. He hes said,
in another decision, that statutes ogqiast
Fundamental morality are reid" And .iis he
has now virtually ap he'd 70 slavery by pfi7Tn-
IN. ite opposition % cH the principles of the
eoainoa la" WI he persist 10 affirming
t,ias though "s'ctutes agains. fundamental
morality ale void, 20. usage OF long con-
t.Duansc" against fundamental morality
contF2rsaed ~ no Legislative ac.;on,p has
tie force Of law g" Win nc venture, In tie
FaG,o breath TO make usage inferior and yet
ssFovicr 70 statote?n He mus. do this, or
sgsc;t 10 reversal of his decision.
Ia n, Easaa time, thing is certain. II
Dix. ia tiso DE Lsa1'J decision in the case Of
Qaerry is night, then Lord lien: fisld's, in the
case OF SonIaersett was wrong But If Mans.
tislds. IN that case, KS, right, then McLean's,
IA ;his. csse, was wrong. The courts Of Mas
sscfusetss are With lia2Sfcij. Even in Louis
isas, IL hGs been held that "prescriptionn
tfec ss'n3 IN principle S. custom Or usagel SIS
i'"t P:caiable against claim for fresdom.n
The influence OK this sentiment released Solo
men Northrup, without Litigation.
Tas faliacy OF JuIgeMoLsan's maxia, lies
in this. Ii makes 10 discrimination between
'riGhts If property" in legitimate subjects Of
p5opol ;y-aai claims TO property in hur,an
bangs, |h.ch ci5inl9 are opposed to oil tie
principles OF common law.n With the former,
possession Or " usage Of long Continuance, 90
irnag siat the memory of man runne,h net to
ths contrary" affords pTesunptiye evidence of
lnss and iaHlei possession. Not 90 with tha
ips'e-. The common Law maxim DO cites is
inanfss'iy rnissYplicd. Confassediy, il is used
directly ia opposition to " al she PRINCIPLES of
conini1D AN" Is involves an atsefnpt TO make
a. ccrmon law maxim overtuFn the VERY
Foundations Of COMMON law Most suicidal
and absurd! The quintes5eace Of lawlcssness,
crossed up il the habilizents Of law.
cannes afford .snae end space 20 expose ell
the absurdires of this decision a speak Of
Afriaan slavery" says the Judge, cautiously
Bat why Of hfrteaa Slavery RcmombeI
We ere not IN the ground of Legislative slave
~ new. air. Biraey had fairly oasted bis
Honor from thas snuS citadel He founders as
he BEST mag, among Yrecedeats, and usages,"
aud Long Continuance" and broken, mis-
placed, AID disiointe1 fragments Of common
law, "onDosed ~ al tae principles of common
Law" And what 90 these say of .ffrican
sl$Yery." that they wouid not, under other
circumstances SIS readily say of any ether sla-
vs-y! There Is I''a'aa slavery among US as
old and as wei. established az african slsye-
ry." Here, too, is yellow and white slavery, as
well rs blsck and red slavery: Anslc-Ssxon
slavery, 9b,esohed or unbleached,D las Nc
u Fl. hath ii)-wh:te lady fugi,ives-a BOYS y
WIKI clear complexioas blue e7es. and flsxsn
hair n-"men, that cannot be distinguished
from white men, passing fox white men,
thus advertised hunted, seized, and delivered
to whoever first claims them and Just as
Liable IS was poor Query 70 be brought be-
fore y1dgs McLeao. african Slavery u for