shing the
rule of decision, which common law says there can be no property, as
he interprets it, in man, and that when trover was brought for a
slave--

Mr. MASON:--Not as I interpret it, but as interpreted in England.

Mr. CRITTENDEN:--I know that. He says it may be so interpreted; that
when trover was brought for a slave in England, the judges decided
there was no property in man. Could the same judges, sitting in a
court in New Mexico, have given that decision when the law there
established such property? In such a case, their decision must be
different. They are referring, according to him, to two contradictory
rules: one establishing slavery and acknowledging property in the
master, and the other the common law denouncing and deciding against
the right of property in man. This could not have been their
intention, nor can this be the construction. We cannot consider these
gentlemen to have changed their opinion from one sentence to another,
to have left an incongruity and a contradiction expressed upon the
face of the same section.

Nor, sir, do they refer--and that is my answer to my friend from
Virginia--to the common law as furnishing the rule of decision at all.
The proceedings shall be according to the course of the common law;
that is all. If any violation is done to the rights of the master, he
may sue; and, for his greater security, he may sue in the Federal
courts; and, for greater security still, the law shall be administered
according to the course of the common law. The common law is referred
to as determining the mode of trial. We say according to the course of
the civil law, and we say according to the course of the common law.
What do we mean? We mean this marked and characteristic and essential
difference: the course of the civil law is for the judge, without the
intervention of a jury, to decide facts as well as the law. The common
law takes away from the judge the power of deciding the facts, and
demands a trial by jury. What this convention mean, therefore, by this
provision is, that trial shall be by jury, according to the course of
the common law. That is the explanation of the difficulty, and thus
all doubt is removed. By these plain provisions--plain in themselves,
and made plainer still by being taken with the context--they say you
shall have your rule of right, according to the law of the Territory,
which is in your favor as to the right to hold persons as property;
that law shall be you