Imágenes de páginas

reason that the amendment, like the other of the first eight amendments, applies only to the Federal Government. But it was, however, also objected that the statute was inconsistent with, or at least that it attempted to cover ground already covered by, congressional legislation with reference to the organization and control of the federal militia. As to this the court said: “It is undoubtedly true that all citizens capable of bearing arms constitute the reserved military force or reserve militia of the United States as well as of the States, and, in view of this prerogative of the Federal Government, as well as of its general powers, the States cannot, even laying the constitutional provision in question out of view, prohibit the people from keeping and bearing arms, so as to deprive the United States of their rightful resource for maintaining the public security, and disable the people from performing their duty to the General Government. But think it clear that the sections under consideration do not have this effect."




" 23

23 It was also argued that the sections of the state law in question were in violation of the Fourteenth Amendment, in that they deprived persons of the enjoyment of a privilege or immunity belonging to them as citizens of the l'nited States. To this the court replied: “We have not been referred to any statute of the United States which confers upon the plaintiff in error the privilege which he asserts. The only clause in the Constitution which, upon any pretense, could be said to have any relation whatever to his right to associate with others as a military company, is found in the First Amendment, which declares that · Congress shall make no law

abridging. the right of the people peaceably to assemble and to petition the government for a redress of grievances. The right voluntarily to associate together as a niilitary company or organization, or to drill or parade with arms, without and independent of an Act of Congress or law of the State authorizing the same, is not an attribute of national citizenship. Military organization and military drill and parade under arms are subjects especially under the control of the government of every country. They cannot be claimed as a right independent of law. Under our political system they are subject to the regulation and control of the State and Federal Governments, acting in due regard to their respective prerogatives and powers. The Constitution and laws of the United States will be searched in vain for any support to the view that these rights are privileges and immunities of citizens of the United States independent of some specific legislation on the subject. It cannot be successfully questioned that the state governments, unless restrained hy their own constitutions, have the power to regulate or prohibit associations and meetings of the of Congress under its enforcement clause is limited to the prevention or punishment of the prohibited acts on the part of the States, the Thirteenth Amendment absolutely prohibits the existence of the people, except in the case of peaceable assemblies to perform the duties or exercise the privileges of citizens of the United States; and have also the power to control and regulate the organization, drilling, and parading of military bodies and associations, except when such bodies or associations are authorized by the militia laws of the United States. The exercise of this power by the States is necessary to the public peace, safety and good order. To deny the power would be to deny the right of the State to disperse blages organized for sedition and treason, and the right to suppress armed mobs bent on riot and rapine."


§ 454. The Quartering of Troops.

The provision of the Third Amendment that “no soldier shall in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law,” requires little explanation, and has received practically none by the Supreme Court.

$ 455. Slavery and Involuntary Servitude.

The prohibition of the Thirteenth Amendment is absolute upon the States and Federal Government alike that " neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” 24

By section 2 of the amendment Congress is given the power to enforce this prohibition by appropriate legislation.

$ 456. Enforcement Clause of the Thirteenth Amendment.

It is to be observed that whereas the Fourteenth Amendment has for its aim the protection of citizens against action on the part of the States, and that, therefore, the legislative power

24 Justices Brown and White in the Insular Cases refer to the phraseology of the Amendment as evidencing that the conception was held that there might be territory subject to the jurisdiction but not a part of the Unitei States. It would appear, however, from the records of the time, that no such significance was attached to the last clause of section 1 of the Amendment. Cf. Address of C. E. Littlefield before the American Bar Association. Reports of, XXIV, 280ff.


institution or fact of slavery or involuntary servitude, and the enforcement clause, therefore, gives to the General Government the power to punish the individual or individuals, whether private persons or state officials who hold, or attempt to hold, anyone in slavery or involuntary servitude.

Pursuant to the power thus given Congress has, by various acts, declared criminal and provided punishment for those persons violating the constitutional provision.23

In Clyatt v. United States,20 upholding the constitutionality of these measures, the court observe that the amendment denounces a status or condition irrespective of the manner in which or authority by which created, and that though self-executing without ancillary legislation so far as its laws are applicable in existing circumstances, “ legislation may be necessary and proper to meet all the various cases and circumstances affected by ii, and to prescribe proper modes of redress for its violation in letter or spirit. And such legislation may be primary and direct in its character." 27 In this respect it is especially pointed out that the Thirteenth differs from the Fourteenth Amendment.

This legislative power of Congress does not, however, extend to the prohibition and punishment of acts which do not in themselves amount to a holding of one in slavery or involuntary servitude, but are acts which infringe the freedom of another. Thus in Hodges v. United States 28 was sustained a demurrer to an indictment in a federal court, on the ground of lack of jurisdiction, which indictment charged the accused with compelling certain negro citizens, by intimidation and force, to desist from performing their contracts of employment.

29 25 See chapter 10 of Act of March 4, 1909, codifying, revising, and amending the federal laws of the United States. 35 Stat, at L. 1138. 26 197 V. S. 207; 25 Sup. Ct. Rep. 429; 49 L. ed. 726.

* This language is substantially quoted from the opinion in the Civil Rights Cases, 109 C. S. 3; 3 Sup. Ct. Rep. 18; 27 L. ed. 835.

28 203 U. S. 1; 27 Sup. Ct. Rep. 6; 51 L. ed. 65. 29 The indictments were brought under sections 1977 and 5508 of the Revised Statutes.

These sections read. § 1977. All persons within the jurisdietion of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to


To the argument that one of the indicia of slavery is the lack of power to make or perform contracts, and that by the acts of the accused this disability had been brought about and the negroes thus pro tanto reduced to a condition of slavery, the court replied that practically every wrong done to another has this result, and to concede the claim of counsel would be to place the punishment of all acts of personal wrong or duress within the power of the Federal Government.3

$ 457. Involuntary Servitude: Peonage.

The Thirteenth Amendment had, of course, for its chief purpose, the abolition of negro slavery. But this was not the sole purpose. Its terms were purposely made broad enough to exclude not only the slavery of any person, whatever his race or color, but his involuntary servitude save as á punishment for crime. It has thus become necessary for the courts to pass upon the constitutionality of various forms of compulsory service which, while


the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other." “$ 5508. If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the lighway, or on the prenuises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured,- they shall be fined not more than five thousand dollars and imprisoned not more than ten years; and shall, moreover, be thereafter ineligible to any office or place of honor, profit, or trust created by the Constitution or laws of the United States."

30 Justices Harlan and Day dissenting.

31“ Undoubtedly, while negro slavery alone was in the mind of the Congress which proposed the 13th article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may safely be trusted to make it void. And so, if other rights are assailed by the States which properly and necessarily fall within the protection of these articles, that protection will apply though the party interested may not be of African descent." Slaughter House Cases, 16 Wall. 36; 21 L. ed. 394.

not amounting to slavery, have been alleged to constitute involuntary servitude or peonage.32

In the Slaughter House Cases33 it was alleged that the grant of exclusive slaughtering rights to a corporation, and the consequent compulsion upon individuals to resort to that corporation for the slaughtering of live stock, created a state of involuntary servitude. After a review of the circumstances leading up to the adoption of the post bellum amendments the court, while admitting that “ the word ' servitude' is of larger meaning than slavery as the latter is popularly understood in this country," decline to extend that meaning so as to include the obligation of the citizen to conform to a requirement of law which, as the court go on to hold, is a legitimate exercise of the States' police powers.

In the Civil Rights Cases34 it was held that the denial to persons of admission to the accommodations and privileges of an inn, a public conveyance or a theater, does not subject him to involuntary servitude “or tend to fasten upon him any badge of slavery," and that, therefore, Congress had no power under the enforcement clause of the Thirteenth Amendment to provide for the punishment of individuals convicted of this denial. The authority given to Congress by the Thirteenth Amendment was declared to be not the power “ to adjust what may be called the social rights of men and races in the community; but only to declare and vindicate those fundamental rights which appertain to the essence of citizenship, and the enjoyment or deprivation of which constitutes the essential distinction between freedom and slavery.” “Mere discriminations on account of race or color were not regarded as the badge of slavery. If, since that time, the enjoyment of equal rights in all these respects has become established by constitutional enactment, it is not by force of the Thirteenth Amendment, which merely abolishes slavery, but by force of the Fourteenth and Fifteenth Amendments." 35

32 The holding or returning of persons to peonage has been declared criminal by act of Congress. $$ 269, 270, Act of March 4, 1909.

33 16 Wall. 36; 21 L. ed. 394.
31 109 U. S. 3; 3 Sup. Ct. Rep. 18; 27 L. ed. 835.

35 Justice Harlan dissented. “I do not contend," he says, “ that the Thirteenth Amendment invests Congress with authority by legislation, to define

« AnteriorContinuar »