3 Answers | Add Yours
Well, to be fair, Douglas was tapping into a long vein of legal history and slavery that stretched at least as far back as the Somersett case in England in 1772. There it was ruled that slavery was "so odious" to natural law that it could not be deemed to exist where positive law was not passed to enforce it. Douglas put another spin on this argument, asserting that slavery was a legal condition, enforced by what he called "quotidian laws." If territorial legislatures didn't pass those laws, slaveholders simply wouldn't bring their slaves there.
Of course, slavery is more than a legal system, and it was often enforced by power and force as much as law (indeed they often went hand in hand.) Douglas also assumed that slavery wouldn't be profitable in the Kansas or Nebraska territories. He was probably in error here, if you look at the increasing numbers of slaves being employed in nascent heavy industry, the production of cereals, and other non-traditional settings in the South in the late 1850s.
During the Lincoln-Douglas debate at Freeport, Illinois, Lincoln asked Douglas how popular sovereignty, which implied the ability to either permit or outlaw slavery in new territories based on the will of the territory's inhabitants, could be constitutional given the recent Dred Scott decision, which said slavery could not be banned from the territories.
Douglas replied that slavery had to be supported by positive laws that enforced it. If these laws were not passed, slavery didn't exist, even if it hadn't been banned. Thus slavery could be kept out of a territory without passing laws against it, which would have been unconstitutional according to the Dred Scott decision.
We’ve answered 334,172 questions. We can answer yours, too.Ask a question