The Unconstitutionality of Slavery

by Lysander Spooner

Again. The argument, that the allowance of the "importation" of "persons," implies the allowance of property in such persons, would imply a recognition of the validity of the slave laws of other countries; for unless slaves were obtained by valid purchase abroad—which purchase implies the existence and validity of foreign slave laws—the importer certainly could not claim to import his slaves as property; but he would appear, at the custom-house, as a mere pirate, claiming to have his captures legalized. So that, according to the slave argument, the simple use of the word "importation," in the constitution, as applied to "persons," bound our government, not only to the sanction and toleration of slavery in our own country, but to the recognition of the validity of the slave laws of other countries.

But farther. The allowance of the "importation" of slaves, as such, under this clause of the constitution, would imply that congress must take actual, and even the most critical cognizance of the slave laws of other countries; and that they should allow neither the mere word of the person calling himself the owner, nor any thing short of the fullest and clearest legal proof, according to the laws of those countries, to be sufficient to enable him to enter his slaves, as property, at the custom-house; otherwise any masters of vessels, from England or France, as well as from Africa, might, on their arrival here, claim their passengers as slaves. Did the constitution, in this clause, by simply using the word "importation," instead of immigration, intend to throw upon the national government—at the hazard of making it a party to the illegal enslavement of human beings—the responsibility of investigating and deciding upon the legality and credibility of all the evidence that might be offered by the piratical masters of slave ships, to prove their valid purchase of, and their right of property in their human cargoes, according to the slave laws of the countries from which they should bring them? Such must have been the intention of the constitution, if it intended, (as it must, if it intended any thing of this kind,) that the fact of "importation" under the commercial regulations of congress, should be thereafter a sufficient authority for holding in slavery the persons imported.

But perhaps it will be said that it was not the intention of the constitution, that congress should take any responsibility at all in the matter; that it was merely intended that whoever came into the country with a cargo of men, whom he called his slaves, should be permitted to bring them in on his own responsibility, and sell them as slaves for life to our people; and that congress were prohibited only from interfering, or asking any questions as to how he obtained them, or how they became his slaves. Suppose such were the intention of the constitution—what follows? Why, that the national government, the only government that was to be known to foreign nations, the only government that was to be permitted to regulate our commerce, or make treaties with foreign nations, the government on whom alone was to rest the responsibility of war with foreign nations, was bound to permit, (until 1808,) all masters, both of our own ships and of the ships of other nations, to turn pirates, and make slaves of their passengers, whether Englishmen, Frenchmen, or any other civilized people, (for the constitution makes no distinction of "persons" on this point,) bring them into this country, sell them as slaves for life to our people, and thus make our country a rendezvous and harbor for pirates, involve us inevitably in war with every civilized nation in the world, cause ourselves to be outlawed as a people, and bring certain and swift destruction upon the whole nation; and yet this government, that had the sole responsibility of all our foreign relations, was constitutionally prohibited from interfering in the matter, or from doing any thing but lifting its hands in prayer to God and these pirates, that the former would so far depart, and the latter so far desist from their usual courses, as might be necessary to save us, until 1808, (after which time we would take the matter into our own hands, and, by prohibiting the causes of the danger, save ourselves,) from the just vengeance, which the rest of mankind were taking upon us.

This is the kind of constitution, under which, (according to the slave argument,) we lived until 1808.

But is such the real character of the constitution? By it, did we thus really avow to the world that we were a nation of pirates? that our territory should be a harbor for pirates? that our people were constitutionally licensed to enslave the people of all other nations, without discrimination, (for the instrument makes no discrimination,) whom they could either kidnap in their own countries, or capture on the high seas? and that we had even prohibited our only government that could make treaties with foreign nations, from making any treaty, until 1808, with any particular nation, to exempt the people of that nation from their liability to be enslaved by the people of our own? The slave argument says that we did avow all this. If we really did, perhaps all that can be said of it now is, that it is very fortunate for us that other nations did not take us at our word. For if they had taken us at our word, we should, before 1808, have been among the nations that were.

Suppose that, on the organization of our government, we had been charged by foreign nations, with having established a piratical government—how could we have rebutted the charge otherwise than by denying that the words "importation of persons" legally implied that the persons imported were slaves? Suppose that European ambassadors had represented to president Washington that their governments considered our constitution as licensing our people to kidnap the people of other nations, without discrimination, and bring them to the United States as slaves. Would he not have denied that the legal meaning of the clause did any thing more than secure the free introduction of foreigners as passengers and freemen? Or would he—he, the world-renowned champion of human rights—have indeed stooped to the acknowledgment that in truth he was the head of a nation of pirates, whose constitution did guarantee the freedom of kidnapping men abroad, and importing them as slaves? And would he, in the event of this acknowledgment, have sought to avert the destruction, which such an avowal would be likely to bring upon the nation, by pleading that, although such was the legal meaning of the words of our constitution, we yet had an understanding, (an honorable understanding!) among ourselves, that we would not take advantage of the license to kidnap or make slaves of any of the citizens of those civilized and powerful nations of Europe, that kept ships of war, and knew the use of gunpowder and cannon; but only the people of poor, weak, barbarous and ignorant nations, who were incapable of resistance and retaliation?

Again. Even the allowance of the simple "importation" of slaves—(and that is the most that is literally provided for—and the word "importation" must be construed to the letter,) would not, of itself, give any authority for the continuance of the slavery after "importation." If a man bring either property or persons into this country, he brings them in to abide the constitutional laws of the country; and not to be held according to the customs of the country from which they were brought. Were it not so, the Turk might import a harem of Georgian slaves, and, at his option, either hold them as his own property, or sell them as slaves to our own people, in defiance of any principles of freedom that should prevail amongst us. To allow this kind of "importation," would be to allow not merely the importation of foreign "persons," but also of foreign laws to take precedence of our own.

Finally. The conclusion, that congress were restrained, by this clause, only from prohibiting the immigration of a foreign population, and not from prohibiting the importation of slaves, to be held as slaves after their importation—is the more inevitable, from the fact that the power given to congress of naturalizing foreigners, is entirely unlimited—except that their laws must be uniform throughout the United States. They have perfect power to pass laws that shall naturalize every foreigner without distinction, the moment he sets foot on our soil. And they had this power as perfectly prior to 1808, as since. And it is a power entirely inconsistent with the idea that they were bound to admit, and forever after to acknowledge as slaves, all or any who might be attempted to be brought into the country as such.

One other provision of the constitution, viz: the one that "the United States shall protect each of the States against domestic violence"—has sometimes been claimed as a special pledge of impunity and succor to that kind of "violence," which consists in one portion of the people's standing constantly upon the necks of another portion, and robbing them of all civil privileges, and trampling upon all their personal rights. The argument seems to take it for granted, that the only proper way of protecting a "republican" state (for the states are all to be "republican,") against "domestic violence," is to plant men firmly upon one another's necks, (about in the proportion of two upon one,) arm the two with whip and spur, and then keep an armed force standing by to cut down those that are ridden, if they dare attempt to throw the riders. When the ridden portion shall, by this process, have been so far subdued as to bear the burdens, lashings and spurrings of the other portion without resistance, then the state will have been secured against "domestic violence," and the "republican form of government" will be completely successful.

This version of this provision of the constitution presents a fair illustration of those new ideas of law and language, that have been invented for the special purpose of bringing slavery within the pale of the constitution.