The Rights of the People

EXTRACT FROM JUSTICE McLEAN’S DISSENTING OPINION

I will now consider the relation which the federal government bears to slavery in the States:- ROP 357.2

Slavery is emphatically a State institution. In the ninth section of the first article of the Constitution it is provided “that 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 1803, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.” ROP 357.3

In the convention it was proposed by a committee of eleven to limit the importation of slaves to the year 1800, when Mr. Pinckney moved to extend the time to the year 1803. This motion was carried, New Hampshire, Massachusetts, Connecticut, Maryland, North Carolina, South Carolina, and Georgia voting in the affirmative, and New Jersey, Pennsylvania, and Virginia in the negative. In opposition to the motion Mr. Madison said: “Twenty years will produce all the mischief that can be apprehended from the liberty to import slaves. So long a term will be more dishonorable to the American character than to say nothing about it in the Constitution.”-Madison Papers. ROP 357.4

The provision in regard to the slave trade shows clearly that Congress considered slavery a State institution, to be continued and regulated by its individual sovereignty, and to conciliate that interest the slave trade was continued twenty years, not as a general measure, but for the “benefit of such States as shall think proper to encourage it.” ROP 358.1

In the case of Groves vs. Slaughter (15 Peters 449; 14 Curtis 137) Messrs. Clay and Webster contended that, under the commercial power, Congress had a right to regulate the slave trade among the several States, but the court held that Congress had no power to interfere with slavery as it exists in the States, or to regulate what is called the slave trade among them. If this trade were subject to the commercial power, it would follow that Congress could abolish or establish slavery in every State of the Union. ROP 358.2

The only connection which the federal government holds with slaves in a State arises from that provision of the Constitution which declares that “no person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.” ROP 358.3

This being a fundamental law of the federal government, it rests mainly for its execution, as has been held, on the judicial power of the Union, and, so far as the rendition of fugitives from labor has become a subject of judicial action, the federal obligation has been faithfully discharged. ROP 358.4

In the formation of the Federal Constitution care was taken to confer no power on the federal government to interfere with this institution in the States. In the provision respecting the slave trade, in fixing the ratio of representation and providing for the reclamation of fugitives from labor, slaves were referred to as persons, and in no other respect are they considered in the Constitution. ROP 358.5

We need not refer to the mercenary spirit which introduced the infamous traffic in slaves to show the degradation of negro slavery in our country. This system was imposed upon our colonial settlements by the mother country, and it is due to truth to say that the commercial colonies and States were chiefly engaged in the traffic. But we know, as a historical fact, that James Madison, that great and good man, a leading member in the federal convention, was solicitous to guard the language of that instrument so as not to convey the idea that there could be property in man. ROP 358.6

I prefer the lights of Madison, Hamilton, and Jay, as a means of construing the Constitution in all its bearings, rather than to look behind that period into a traffic which is now declared to be piracy, and punished with death by Christian nations. I do not like to draw the sources of our domestic relations from so dark a ground. Our independence was a great epoch in the history of freedom; and, while I admit the government was not made especially for the colored race, yet many of them were citizens of the New England States, and exercised the rights of suffrage when the Constitution was adopted, and it was not doubted by any intelligent person that its tendencies would greatly ameliorate their condition. ROP 359.1

Many of the States, on the adoption of the Constitution, or shortly afterward, took measures to abolish slavery within their respective jurisdictions, and it is a well-known fact that a belief was cherished by the leading men, South as well as North, that the institution of slavery would gradually decline, until it would become extinct. The increased value of slave labor, in the culture of cotton and sugar, prevented the realization of this expectation. Like all other communities and States, the South were influenced by what they considered to be their own interests. ROP 359.2

But if we are to turn our attention to the dark ages of the world, why confine our view to colored slavery? On the same principles white men were made slaves. All slavery has its origin in power, and is against right. ROP 359.3