Cincinnati daily press. [volume] (Cincinnati [Ohio]) 1860-1862, 1860-08-10
Can Slavery Exist In tho Territories by
Virtue Of the Common Lawf

Virtue Of the Common Lawf
This has been the subject Of series of
articles in the Commercial. The question is
rendered Interestingly absurd by the fact
that there is no agreed definition of what
common law is, and each interprets to suit
his own case; so that the question really is,
whether a~thing can exist by virtue of
common law if common law prohibits it
an interesting and eminently suitable ques-
ton for newspaper argument, the way the
world goes.
The first question is, what is common law2
tits common custom, and, so far as 1t is writ
ten, is contained in judicial decisions. To
this extent all will admit. But whose cus-
toms, and whose decisions2 common law
has usually been the common custom of the
place. According to the foundation of COM
mon law, the question would seem to be
this Can slavery exist in a Territory by
virtue of law founded on the customs Of the
people of the Territory The answer would,
Of course, be, II can, if they are accustomed
TO slavery. This would make II very circu-
lar question; but we suspect that this is all
there is Of it.
Is our common law to end with English
customs and decisions Then the question
would be, can slavery exist in Territory by
virtue of English custom That would not
seema sensible question. American common
law, founded on English customs, would be
queer common law for an Independent ma
ton. But this would not settle the question;
for still the inquiry would remain-of what
age in England shall the custom be taken as
the common law of eur Territories? Free
dom is a recent invention in England, and
till modern times the common law sustained
villeinage, which we suppose was the worst
form of slavery. England never had any
common law of freedom in her Territories.
Is it possible that people can not get so SIM
pie and patent historical fact into their nod
dies, when they talk about the common law
of England forbidding slavery in our Terri
tories
The Commercial adopts the common law
of England, and decides that by it slavery
can not exist in the Territories, because it
finds decision of Mansfield that slaves can
not breathe the air of England, under the
common law. But slaves did at that very
time breathe the air of England's Colonies
in America under the same common law,
and the African slave trade was carried on
under the British flag Is it not one of the
strangest muddles of political logic, that
when slavery was actually established in all
North America, from Atlantic to Pacific, un-
der English common law, without any posi-
tive statute, it should now, when we are an
independent nation, be seriously argued that
under the English common law slavery can
not exist in our Territories without special
enactment?
But suppose that we take American COM
mon law and common sense. Custom has
established the rights Of the slave-owner in
the slave States, SO that they are recognized
by the free States and by the Constitution;
all the statutes regulating slavery were after
provisions The right of the STAKEHOLDER does
not depend on statutes at all; nor does the
recognition which the free States have given
it depend on the fact whether it is properly
legislated into existence by local law, or not
Men do not know what they are talking
about when they reiterate that slavery car
exist only by virtue of local law. 1t never
acquired any existence by local law; ant
when men say they are opposed to slavery
but are opposed to interfering with its righti
in the slave States, they never have made
that recognition depend on the fact whethel
il was founded and established in legislation
It would be utterly absurd to do this fo
when anti-slavery men admit that the Law
can make slave, they cut the platform from
under their own feet, and leave themselves
suspended by the neck, dancing on nothing
Does the Commercial or any anti-slavery
paper pretend that if all the statutes in tn,
South, regulating and protecting slavery
were repealed, the rights of the slaveholde
would thereby be destroyed? This would b
the case if slavery existed by virtue of loca
law; but none of the local-law preachers vii
pretend any such thing; and'this shows tn
fallacy of their local-law logic.
But to return to our common law demon
stration. Slavery exists in the South b
virtue of the common law of the place. Th
Constitution and Congressional Legislation
recognize this common law by providing
that rights existing under it shall not be de
st-oyed by the escape of slaves to other State
The Constitution does not prohibit slavery an
where; and when it was adopted slavery e'
isted in all the States and in all the terri
tory, except the North-west Territory,
which It had been prohibited by special ord
nance Now, in the face of all this, can an
one pretend that the common law OF tn
nation is such that it forbids slavery ever!
where, except where established by speci
enactment? In the face of all this, will an
one pretend that the common law Of tn
country is one of universal liberty Coul
any thing be more contrary to the factsf
We are talking of common law and con
mon facts, not of faith nor of abstract righ
When it comes to faith, why, in politics
believe what the party resolves, and in r
liQion what the Church lays down. But I'll
is a matter of fact. We want none of the
institutions" about us, ITO fan us while
sleep and tremble when we wake" III
tender Poet, Walt Whitman, expresses OF
democracy exactly:
"I speak the word primeyal--I give the sign Of d
Bv God / viii accept nothing which all can not ha
their counterpart Of on the same terms
That is our idea of abstract right; but Dc