Cincinnati daily press. [volume] (Cincinnati [Ohio]) 1860-1862, 1860-07-25
"Cen sllvcry Exist In the Territories by
virtue Of the Common LAVE"


virtue of the Common Laws''
Thisproposition was discussed in the Com
D,ercid yesterday. We like to see the bull
tekeh by the horns in this way. We have an
unaefned impression that the question is an
absurd contradiction in ITSELF but shall not
say 30 until we have looked at the argument
The decision is in the negative, for Of course
the Commercial did not raise this question
until it had the ammunition ready to demolsh
il. The ratiocinationis as follows. First, the
definition of Common Law is settled. Sir
VIM. Blackstone says;
The chief corner stone of the laws of En-
gland is general, immemorial custom, or
Common Laws from time 10 time declared in
the Courts of Justice"
The Commercial indorses the definition as
being "as accurate as any that can be given
of thing so uncertain" 1t also quotes much
other law, but MS It is only cumulative,
suppose we stop at Blackstone, and try the
proposition by his definition of Common
Law.
Can slavery exist in the Territories by
virtue of the common law 2" Common law
is founded on immemorial custom. Sla-
very is immemorial custom. So the
question really is, can immemorial custom
exist in the Territories by the law of mme-
mortal custom2 We fear there is something
nonsensical about that.
But the Commercial shows that by the
common law slavery could not exist in En-
gland. Is it not wonderful that where the
custom did not exist, there should be no law
of immemorial custom to sustain III Still
more remarkable is the conclusion that be-
cause there was not the custom in England
to make the law, custom cannot make law
anywhere else thatis common law is founded
on English customs, and cannot go beyond
them. Then il was a pleasing delusion that
we were an independent nation, with the
right to make our own laws.
But slavery did exist under the common
law in the British American Colonies. SO,
even five were limited TO British customs for
our common law, we have slavery existing
and established in this country under Briti;h
common law. Neither Blackstone, Mansfield
nor Hale ever held that English common
law abolished slavery in any of the British
dominions where it was the CUSTOM but only
in England, where it was not the custom.
Yet we find that British common law, which
did not prevent the existence of slavery in
British Territories, is expected to have virtue
to prevent it in the Territories of an indie
pendent nation.
British common law has sustained every
relation of mankind to each other, during
the various stages Of the progress of that
nation. 1t sustained the Norman conquest,
and the division of the lands among the
Barons, by which title they are held yet 1t
sustained villeinage, which was slavery itself
1t sustained hereditary Peers, the system of
primogeniture, and an established Church;
and it sustained the African slave-trade, and
slavery in the Colonies. Is it not miraculous
that this common law, which has been the
veriest drab in its accommodation to circum-
stances at home, should have such rigid virtue
in foreign nation, that it can not stomach
slavery
But the triumphant conclusion of the Com
mercidps argument Is but the beginning Of
difficulties. The position is th S: Slavery
can not exist by virtue of the common
law; it Pust be established by positive
enactment. Then slave taken into Ter.
ritory is free, unless held by special legisla.
ton. Then special legislation can make q
free man slave. Then what limit is there
to the power to make slaves by legislation
This is popular sovereignty with the hair on
This is immeasurably farther than slavery
ever claimed; and this, let it be remembered
is from those who would restrain slavery by
original principles 1t will not do to say
that the power to legislate men into slavery
is limited to the African race, because they
are the only race that it is customary to en-.
slave, for the very ground of the argument is
that custom goes for nothing, except English
custom.
When and where in the world was SLAYER,
ever made by direct legislation Never anC
no where. The law never made u slave, anC
can not, The law recognizes existing rela
tions and conditions, and adapts itself t,
them. British common law has recognized
and protected the African slave trade, an,
slavery in the West India Islands, and il
thirteen of the States of this Union, when i
was supreme over them; and now, when W,
have acquired national independence, we ar,
told that slavery can not exist in the terri
tories without special enactment, because BY
the common law slavery can not exist il
England. And this is thought to be reason
ing on original and legal principles.