Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1858-12-31
An Argument against the Policy Of Rs-opening the
African Slave Trade
IcOyTISCED.l

4
proposed project of reopening that traffic, with
reference first to the constitutional question in
Yolycd in the controversy, and in the second
| place, with reference to the advantages pro-
! posed bv Its advocates, and the disadvantages
and evils which il appears TO me will result
! from its adoption. These latter branches OF
! the question will in some sort run into each
/ other This is the simplest and most pcrspicu-
I OILS plan Of the argument, and will afford lati-
! tule enough for satisfactory survey Of the
! whole ground.
! The clause OF tho Constitution which refers
particularly To this subject is in the following
words: The migration or importation OF such
persons rs the States now existing shall think
proper 10 admit, shall not be prohibited by the
( Congress prior to the year one thousand elsht
d, hundred and eight, but a tax " duty may no
laid on such Importation not exceeding ten
dollars for each person. This is the provision
usually referred 70 in recent discussions oil THIS
matter. and il would seem that the impression
has become somewhat prevalent, that TINS
clause constitutes the foundation OF the Con-
rrcssional power over the slave trade. Hence
il has been argued, that rs the Language of this
clause is restrictive in its terms, and merely
prohibitory of the exercise Of intcrdicting the
traffic for period Of time, it cannot he relied
on rs containing grant Of such power, at tho
eypiration of the time limited. Thatit imports
no grant of substantive power, but merely
limitation Of power, and that no power can
arise by implication out of the negative words
of prohibition This reasoning proceeds upon
sound principles Of logic and construction, but
there i, defect in the premises, and conse-
ouently the conclusion arrived ut IL erroneous.
That defect of the premises consists in taking
il for granted that this clause /, the only con-
stituti0nal provision relating to the question.
: If this was true, il must occur to the inind OF
him who reasons upon it in that view .that TINS
provision is singularly absurd. Tor, why
limit a power which had not been granted:
What SENSE was there in saying that Congress
shall not prohibit this importation prior to the
wear 1908, ii without such negative words oil re-
striction, Congress could not prohibit II, before
or after that time We cannot ilnputc such abb
sur,litr to the sagsciouS trainers. The recogni-
ton OF the power is so clearly manifest in this
provision, that we are led 10 conclude, either
that they intended TO convey the power by the
clause itself OF that it had reference TO power
granted in some other provision Of the instru-
ment. That they intended to convey it by the
clause ITSELF is scarcely probable for two rea-
sons: In the first place, this clause is not found
classed with the grants Of power. The sth
Section Of the LIST Article embodieS all enumera-
ton of all the powers granted to Congress, and
concludes with the auxiliary grant Of power
Ito make all laws which shall be necessary and
proper for carrying into execution the forcgo-
ing powers, and all other powers vested by this
Constitution in the Government Of the United
States, or in any department or office thereof
And then follows immediately i'll the 9Th Sec
ton. the prohibitions upon the powers contained
in the 9Th Section. The very first Of these
prohibitions is tho clause in question, followed
by many other prohibitory provisions, running
through the whole of the 9TH and 10Th Sections.
Now this power to prohibit the importation Of
slaves was certainly no inconsiderab!e power.
II is not reasonable to infer that it was con-
Sidcrcd so small in itself, that it might flo~ as
all incident to the restrictive words limiting the
time The power, in its nature. was OF vast
magnitude Ii was one which the States had
not surrendered by the previous Confederation.
1t was one which they had been expressly ex-
ercsing in their separate Legislatures. II there
fore involved grant to Congress of important
power, upon most important subject. Is il
reasonable that it should have been intended,
that these prohbitory worlS--these terms of
negation-should convey it BY mere logical in
ference: And is it reasonable that the grant
should have been classcd among limitations and
restrictions: In the second place, it is not
probable that they so intended, because this Is
not the form and style Of the words employed
by them, in making other important grants Of
power to the Congress. The very nature of
the system they were forminS-which was
system composed Of powers surrendered and
impaired by the separate Substituted in
their very natrc-forbids the idea. No men
ever understood better what they were doing.
None ever knew better the force Of legal and
constitutional language. None knew better
than they that powers did not spring from
words of ncgation And no one now knows
better than they knew, that If they had really
intended in their minds TO convey this power
to Congress, by these wordS-that intention
would have failed, because it was not support
ed by the words Intention is the great rule
Of Interpretation. but it is only rule Of inter
probation. 1t is not 10 he carried so far Ms TO
make that the law, which they intended to
make, but neglected or .fdilei To make. And
am free to confess. that if these words are the
only foundation Of the power, that power.
though intended to be granted was not granted.
and is unconstitutional.
Blu; are these words the only foundation for
the power: They evidently refer to the pow
er which they restrict. They are Of much force
in this investigation, for they demonstrate be-
yond all question, that the power over this
subject, was recognized by the trainers Of the
Constitution, as being contained III the instru-
mcnt. What then does that clear recognition
have reference to: Beyond MI doubt, to some
of the grants contained in the section preceding.
/ TO that grant Of power Ito regulate commerce
with foreign nations, and among the several
States and with the Indian tribes This is
the clause that contains the power; it is no in
cidental or implied power; it is no implication
from prohibitory words; it is the living spirit
Of specific grant. Fortunately for us, we are
not without the light Of contcmporaneolS histo-
. ~ and contenporancous construction upon
this point The provision relating to the limi-
, taton of time, within which the power should
not be cxcrtcd, gave rise TO facts, and is con-
ncctcd with circumstances, which throw flood
of light upon this question. In the Convention
the attempt was made to except the Slave
Trade from the general power over foreign
commerce. The first draft Of the Constitution
as presented by the committee of five. contain
ed the prohibition in these words: No tax or
duty shall be laid &c, OH the migration or ilii-
portation Of such persons Us the several States
shall think proper to admit; nor shall such mi
grafton or importation be prohibited" This
was voted down by eight States against three;
the three being the two Carolinas and Georgia.
The matter was then referred to another CON-
mite composed Of one delegate from each
State, with a view Of harmonizing conflicting
sentiments; and they reported it in its present
shape, except that the time limited was lone
thousand eight hundred" which was amended
by adding the words land eight" and thus it
was adopted, by vote Of seven States to four.
The bold stand taken by the delegates from
Georgia and South Carolina, when the absolute
of detail was voted down, caused the appoint
,,ent or thc committee of onc from each State