It is, however, wholly immaterial, whether Congress could prohibit our participation in the “African slave trade,” in virtue of the clause which empowers it “to regulate commerce.”  That the Constitution does, in some one or more of its passages, convey the power, is manifest from the testimony of the Constitution itself.  The first clause of the ninth section says:  “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 they year 1808.”  Now the implication in this clause of the existence of the power in question, is as conclusive, as would be the express and positive grant of it.  You will observe, too, that the power of Congress over “migration or importation,” which this clause implies, is a power not merely to “regulate,” as you define the word, but to “prohibit.”

It is clear, then, that Congress had the power to interdict our trade in human beings with Africa.  But, in view of what has been said on that point—­in view of the language of the Federal Constitution—­of the proceedings of the Convention, which framed it—­and of the cotemporary public sentiment—­is it any less clear, that Congress has the power to interdict the inter-state traffic in human beings?

There are some, who assert that the words “migration” and “importation,” instead of referring, as I maintain they do—­the former to the removal of slaves from state to state, and the latter to their introduction from Africa—­are used in the Constitution as synonyms, and refer exclusively to the “African slave trade.”  But there is surely no ground for the imputation of such utter tautology, if we recollect that the Constitution was written by scholars, and that remarkable pains were taken to clear it of all superfluous words—­a Committee having been appointed for that special purpose.  But, it may be asked, Why, in reference to the taking of slaves from one state to another, use the word “migration,” which denotes voluntary removal?  One answer is—­that it can be used with as much propriety in that case, as in the removal of slaves from Africa—­the removal in the one case being no less involuntary than in the other.  Another answer is—­that the framers of the Constitution selected the word “migration,” because of its congruity with that of “persons,” under which their virtuous shame sought to conceal from posterity the existence of seven hundred thousand slaves amongst a people, who had but recently entered upon their national career, with the solemn declaration, that “all men are created equal.”

John Jay, whose great celebrity is partly owing to his very able expositions of the Constitution, says:  “To me, the constitutional authority of the Congress to prohibit the migration and importation of slaves into any of the states, does not appear questionable.”  If the disjunctive between “migration” and “importation” in the Constitution, argues their reference to the same thing, Mr. Jay’s copulative argues more strongly, that, in his judgment, they refer to different things.