There is the security for the rights of the South. South of that line they are remitted to the courts under the common law. Now, sir, let us examine that. By this section, if it is adopted as an article of the Constitution, the common law, eo nomine, is made a part of the Constitution, so far as it affects the relations of master and slave. Now, what is the common law? Who is there upon this floor that will tell me what common law is meant by this section? With all my respect for the thorough knowledge and the legal acquirements of the honorable Senator from Kentucky, I know he cannot tell me what common law is meant by that first section. We know, as jurists, what is meant by the term common law, for it is a technical term. The common law is the law of England, the unwritten law of England, the lex non scripta. That is the common law in its legal acceptation. Is it, then, the law of England that is made a part of the Constitution, and to which the master is remitted for the security of his rights between him and his servant? Will any gentleman tell me that it is the common law of England that is to be made a part of the Constitution to which we are to be remitted? If it is the common law of England, is it the common law of England as it stands at this day, on the first of March, 1861?
Mr. CRITTENDEN:—If my friend will allow me, I take it that that term applies only to the remedies known to the common law. The laws of the Territories are to be enforced, and the remedies under them are to be administered according to common law. The master is to have his rights according to the law of the Territory, and to secure those rights according to the common law.
Mr. MASON:—The language of the section is, that neither Congress nor the Territorial Legislature shall interfere to impair the rights arising from this relation of master and slave; "but the same"—that is, this relation between master and slave—"shall be subject to judicial cognizance in the Federal courts, according to the course of the common law."
Now, the honorable Senator says that means only the remedy of the common law; that you are to take the law of the Territory, whatever it may be, and administer that, by confining it to the remedies known to the common law. I deny the interpretation. The Senator may be right, or I may be right. I say the text does not warrant the interpretation. The text refers to the rights in the relation of master and slave, and says they (those rights) shall be the subject of judicial cognizance, according to the course of common law. Now, I ask, what is the common law that is thus made a part of the Constitution for the subject to which it refers? Is it the law of England? There is no common law, that I am aware of, known to jurists as the law of England. There is no law in the State of Virginia, and, I presume, none in the State of Kentucky, known as common law. The State of Virginia, when it became independent as a colony of Great Britain, adopted and made its own that which before had been the common law of England, and therefore the common law of the colony. The State of Virginia (and I instance that only because I am familiar with it), when it became independent, adopted as its law the common law of England, as that common law stood at the commencement of the fourth year of James I.; and thereby, by statute, made that which had been the common law, the law of Virginia. Now, it is the law of Virginia, not because it is the common law, but because statutes made it the law of Virginia. But is the common law of Virginia, if you will call it by that name, the common law of Kentucky; or is the common law of Kentucky the common law of Missouri; or is the law of those three States, or any other State, now the common law of England? I demand to know, therefore, when we make the common law a part of the Constitution, if this enactment should prevail, what is meant by the common law? To that vague, grand residuum of judicial legislation we are to be remitted for our rights between master and slave, if this is enacted.
Now, sir, suppose it were so: my colleague has well said (and I will not repeat it after him, for I should only weaken it), that there is not one judicial interpreter or expounder of the common law, in any one of the free States, in reference to the relation of master and slave, that does not deny that the master has any property in his slave, at this day and this hour. Why, sir, what is the pending controversy between the State of Ohio, one of the free States, and the State of Kentucky, one of the slave States—a controversy depending here recently in the Supreme Court? The Governor of Kentucky demanded, under the Constitution, the rendition of a fugitive from justice, who had abducted a slave from Kentucky, and carried him into Ohio. The Governor of Ohio refused the demand, upon the ground that there could be no stealing of a man; that there could be no property in man; and that the slave, being a man, was not a subject of theft, of larceny; and he refused, and refuses up to this day, under the common law, to recognize the existence of property in man.
Now, take the common law of England at this day: here, within the last three or four weeks, the Queen's Bench, in England, has declared as the common law, that if a slave murders his master, or murders the agent of his master, in the attempt to recapture him, he is justified. That is the common law to which we are to be remitted for the rights resulting from the relations of master and slave. Sir, I have looked back a little to see what the common law was in England in this famous Somerset case, I find this in the argument of the counsel there, expounding the common law, which was afterwards sustained by Lord Mansfield in his decision:
"But it has been said by great authorities, though slavery, in its full extent, be incompatible with the natural rights of mankind, and the principles of good government, yet a moderate servitude may be tolerated, nay, sometimes must be maintained."
And again:
"There is now, at last, an attempt, and the first yet known, to introduce it [slavery] into England. Long and uninterrupted usage, from the origin of the common law, stands to oppose its revival."
And again: