The Unconstitutionality of Slavery

by Lysander Spooner

"The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person."—(Art. 1, Sec. 9.)

The slave argument, drawn from this clause, is, that the word "importation" applies only to property, and that it therefore implies, in this clause, that the persons to be imported are necessarily to be imported as property—that is, as slaves.

But the idea that the word "importation" applies only to property, is erroneous. It applies correctly both to persons and things. The definition of the verb "import" is simply "to bring from a foreign country, or jurisdiction, or from another state, into one's own country, jurisdiction or state."—When we speak of "importing" things, it is true that we mentally associate with them the idea of property. But that is simply because things are property, and not because the word "import" has any control, in that particular, over the character of the things imported. When we speak of importing "persons," we do not associate with them the idea of property, simply because "persons" are not property.

We speak daily of the "importation of foreigners into the country;" but no one infers therefrom that they are brought in as slaves, but as passengers. A vessel imports, or brings in, five hundred passengers. Every vessel, or master of a vessel, that "brings in" passengers, "imports" them. But such passengers are not therefore slaves. A man imports his wife and children—but they are not therefore his slaves, or capable of being owned or sold as his property. A man imports a gang of laborers, to clear lands, cut canals, or construct railroads; but not therefore to be held as slaves. An innocent meaning must be given to the word, if it will bear one. Such is the legal rule.

Even the popular understanding of the word "import," when applied to "persons," does not convey the idea of property. It is only when it is applied distinctly to "slaves," that any such idea is conveyed; and then it is the word "slaves," and not the word "import," that suggests the idea of property. Even slave traders and slave holders attach no such meaning to the word "import," when it is connected with the word "persons;" but only when it is connected with the word "slaves."

In the case of Ogden vs. Saunders, (12 Wheaton, 332,) Chief Justice Marshall said, that in construing the constitution, "the intention of the instrument must prevail; that this intention must be collected from its words; that its words are to be understood in that sense in which they are generally used by those for whom the instrument was intended." On this principle of construction, there is not the least authority for saying that this provision for "the importation of persons," authorized the importation of them as slaves. To give it this meaning, requires the same stretching of words towards the wrong, that is applied, by the advocates of slavery, to the words "service or labor," and the words "free" and "all other persons."

Another reason, which makes it necessary that this construction should be placed upon the word "importation," is, that the clause contains no other word that describes the immigration of foreigners. Yet that the clause related to the immigration of foreigners generally, and that it restrained congress, (up to the year 1808,) from prohibiting the immigration of foreigners generally, there can be no doubt.

The object, and the only legal object, of the clause was to restrain congress from so exercising their "power of regulating commerce with foreign nations, and among the several states, and with the Indian tribes"—(which power has been decided by the supreme court of the United States, to include a power over navigation and the transportation of passengers in boats and vessels[21])—as to obstruct the introduction of new population into such of the states as were desirous of increasing their population in that manner. The clause does not imply at all, that the population, which the states were thus to "admit," was to be a slave population.

The word "importation," (I repeat,) is the only word in the clause, that applies to persons that were to come into the country from foreign nations. The word "migration" applies only to those who were to go out from one of our own states or territories into another. "Migration" is the act of going out from a state or country; and differs from immigration in this, that immigration is the act of coming into a state or country. It is obvious, therefore, that the "migration," which congress are here forbidden to prohibit, is simply the going out of persons from one of our own states or territories into another—(for that is the only "migration" that could come within the jurisdiction of congress)—and that it has no reference to persons coming in from foreign countries to our own.

If, then, "migration," as here used, has reference only to persons going out from one state into another, the word "importation" is the only one in the clause that is applicable to foreigners coming into our country. This word "importation," then, being the only word that can apply to persons coming into the country, it must be considered as substantially synonymous with immigration, and must apply equally to all "persons," that are "imported," or brought into the country as passengers. And if it applies equally to all persons, that are brought in as passengers, it does not imply that any of those persons are slaves; for no one will pretend that this clause ever authorized the state governments to treat as slaves all persons that were brought into the country as passengers. And if it did not authorize them to treat all such passengers as slaves, it did not authorize them to treat any of them as such; for it makes no discrimination between the different "persons" that should be thus imported.