Daily Nashville patriot. [volume] (Nashville, Tenn.) 1860-1862, 1860-07-28
The Border Star (MissourD says:
1Eron the CINCINNATI Press. 1ulr 81

.sCan Slavery Exist In the Territories
by Virtue of the Common Lawfo
This proposition was discussed in the Com
nlercial yesterday. We like to see the bull ia
ken by the horns in this way. We have an
underlined impression that the question is an
absurd contradiction in itself, but shall not
say so until we have looked at the argument.
The decision is in the negative. for of course
the Commercial did not raise this question I'M
til it had the ammunition ready to demolish
it. The ratiocination is as follows. First, the
definition of Common Law is settled. Sir
VIM. Blackstone says:
ssThe chief cornerstone of the laws of En-
gland is general, immemorial custom, or
Common Laws from time to time declared in
the Courts of Justice
The Commercial Endorses the definition as
being las accurate as any that can be given
of thing so uncertain 1t also quotes much
other law. but as it is only cumulative, sup
pose we stop at Blackstone, and try the prop
osition by his definition of Common Law.
"Can slavery exist in the Territories by
virtue of the common law?" Common law is
founded on immemorial custom. Slavery is
immemorial custom So the question really
is, can immemorial custom exist in the Terri
tories by the law of immemorial custom!
We fear there is something nonsensical about
that.
But the Commercial shows that by the COM
mon law slavery could hot exist in England.
Is it not wonderful that where the custom did
not exist, there should be no law of imme-
mortal custom to sustain it, Still more re-
markable is the conclusion that because
there was not the custom in England to make
the law, custom cannot make law anywhere
else; that is, common law is founded on En-
glish customs, and cannot 60 beyond them.
Then it was 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 if we were limited to British customs
for our common law, We have slavery exist
ing and established in this country under
British 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 Independent nation.
British common law has sustained every
relation OF mankind to each other, during
the various stages OF the progress of that ma
ton. 1t sustained the Norman conquest,
and the division of the lands among the Ba-
rons by which title they are held yet. 1t
sustained yilIienage, which was slavery it
self. 1t sustained hereditary Peers. the sys-
tenn 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 circumstances at home, should have such
rigid virtue in q foreign nation, that it can
not stomach slavery.
But the triumphant conclusion of the Ohm
| pereiaf's argument is but the beginning of
difficulties The position is this: Slavery
cannot exist by virtue of the common law !;
| il must be established by positive enactment.
Then slave taken into Territory is free,
| unless held by special legislation. Then
special legislation can make free man a
slave. Then what limit is there to the power
to make slaves by legislation This is pop
ular 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 not limited to the African race, because
they are the only race that it is customary TO
enslsve, for the very ground OF the argument