American Political History: 1763-1876

Excerpt from American Political History: 1763-1876

It may be laid down as a fundamental proposition, that negro slavery in the Colonies never existed or was originally established by law, but that it rested wholly on custom. The dictum, so often quoted, that slavery, being a breach of natural right, can be valid only by positive law, is not true: it is rather true that slavery, where it existed, being the creature of custom, required positive law to abolish or control it.

In Great Britain, in 1772, custom had made slavery so odious that the Sommersett case justly held that positive law was necessary for the establishment of slavery there in any form; but the exact contrary of this rule, of course, held good in commonwealths where custom made slavery not odious, but legal. In these cases the laws which were passed in regard to slavery were only declaratory of a custom already established, and cannot be said to have established slavery.

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