$30. 843, 3 Sup. Ct. Rep. 18, 28, 29, in which the court passed upon the constitutionality of an act of Congress providing for the full and equal enjoyment by every race equally, of the accommodations, advantages, and facilities of theaters and public conveyances, and other places of public amusement; and in which the court also considered the scope and effect of the 13th Amendment. In that case the court, speaking by Mr. Justice Bradley,-who, as we have seen, delivered* the judgment in the case just cited,―said: "By its own unaided force and effect it abolished slavery and established universal freedom. Still, legislation may be necessary and proper to meet all the various cases and circumstances to be affected by it, 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; for the Amendment is not a mere to full and equal benefit of all laws and pro- | Cases, 109 U. S. 3, 20, 22, 27 L. ed. 835, 842, ceedings for the security of persons and property, as is enjoyed by white citizens, and should be subject to like punishment, pains, and penalties, and to none other, any law, etc., to the contrary notwithstanding. It was supposed that the eradication of slavery and involuntary servitude of every form and description required that the slave should be made a citizen and placed on an entire equality before the law with the white citizen, and, therefore, that Congress had the power, under the amendment, to declare and effectuate these objects. Conceding this to be true (which I think it is), Congress then had the right to go further and to enforce its declaration by passing laws for the prosecution and punishment of those who should deprive or attempt to deprive any person of the rights thus conferred upon them. Without having this power, Congress could not enforce the amendment. It cannot be doubted, there-prohibition of state laws establishing or upfore, that Congress had the power to make it a penal offense to conspire to deprive a person of, or to hinder him in, the exercise and enjoyment of the rights and privileges conferred by the 18th Amendment and the laws thus passed in pursuance thereof. But this power does not authorize Congress to pass laws for the punishment of ordinary crimes and offenses against persons of the colored race or any other race. That belongs to the state government alone. All ordinary murders, robberies, assaults, thefts and offenses whatsoever are cognizable only in the state courts, unless, indeed, the state should deny to the class of persons referred to the equal protection of the laws. .. To illustrate: If in a community or neighborhood composed principally of whites, a citizen of African descent, or of the Indian race, not within the exception of the Amendment, should propose to lease and cultivate a farm, and a combination should be formed to expel him and prevent him from the accomplishment of his purpose on account of his race or color, it cannot be doubted that this would be a case within the power of Congress to remedy and redress. It would be a case of interference with that person's exercise of his equal rights as a citizen because of his race. But if that person should be injured in his person or property by any wrongdoer for the mere felonious or wrong ful purpose of malice, revenge, hatred, or gain, without any design to interfere with his rights of citizenship or equality before the laws, as being a person of a different race and color from the white race, it would be an ordinary crime, punishable by the state laws only." This was followed by the Civil Rights holding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States. It is true that slavery cannot exist without law, any more than property in lands and goods can exist without law; and, therefore, the 13th Amendment may be regarded as nullifying all state laws which establish or uphold slavery. But it has a reflex character also establishing and decreeing universal civil and political freedom throughout the United States; and it is assumed that the power vested in Congress to enforce the article by appropriate legislation clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents of slavery in the United States. The long existence of African slavery in this country gave us very distinct notions of what it was and what were its necessary incidents. Compulsory service of the slave for the benefit of the master, restraint of his movements except by the master's will, disability to hold property, to make contracts, to have a standing in court, to be a witness against a white person, and such like burdens and incapacities, were the inseparable incidents of the institution. Severer punishments for crimes were imposed on the slave than on free persons guilty of the same offenses. . . We must not forget that the province and scope of the 13th and 14th Amendments are different; the former simply abolished slavery; the latter prohibited the states from abridging the privileges or immunities of citizens of the United States, by depriving them of life, liberty, or property without due process of law, and from denying to any the equal protection of the laws. The Amend A ments are different, and the powers of Con- | Stat. 1901, pp. 1266, 3715). A person arbigress under them are different. What Con- trarily or forcibly held against his will for gress has power to do under one, it may not the purpose of compelling him to render have power to do under the other. Under personal services in discharge of a debt is in the 13th Amendment it has only to do with a condition of peonage. It was not claimed slavery and its incidents. Under the 14th in that case that peonage was sanctioned Amendment it has power to counteract and by or could be maintained under the Conrender nugatory all state laws and proceed-stitution or laws either of Florida or Georings which have the effect to abridge any gia. The argument there on behalf of the of the privileges or immunities of citizens accused was, in part, that the 13th Amendof the United States, or to deprive them of ment was directed solely against the states life, liberty, or property without due proc- and their laws, and that its provisions could ess of law, or to deny to any of them the not be made applicable to individuals whose equal protection of the laws. Under the illegal conduct was not authorized, permit13th Amendment, the legislation, so far as ted, or sanctioned by some act, resolution, necessary or proper to eradicate all forms order, regulation, or usage of the state. and incidents of slavery and involuntary That argument was rejected by every memservitude, may be direct and primary, oper- | ber of this court, and we all agreed that ating upon the acts of individuals, whether sanctioned by state legislation or not; under the 14th, as we have already shown, it must necessarily be and can only be corrective in its character, addressed to counteract and afford relief against state regulations or proceedings." I participated in the decision of the Civil Rights Cases, but was not able to concur with my brethren in holding the act there involved to be beyond the power of Congress. But I stood with the court in the declaration that the 13th Amendment not only established and decreed universal, civil and political freedom throughout this land, but abolished the incidents or badges of slavery, among which, as the court declared, was the disability, based merely on race discrimination, to hold property, to make contracts, to have a standing in court, and to be a witness against a white person. Congress had power, under the 13th Amendment, not only to forbid the existence of peonage, but to make it an offense against the United States for any person to hold, arrest, return, or cause to be held, arrested or returned, or who in any manner aided in the arrest or return, of another person, to a condition of peonage. After quoting the above sentences from the opinion in the Civil Rights Cases, Mr. Justice Brewer, speaking for the court, said: "Other authorities to the same effect might be cited. It is not open to doubt that Congress may enforce the 13th Amendment by direct legislation, punishing the holding of a person in slavery or in involuntary servitude, except as a punishment for crime. In the exercise of that power Congress has enacted these sections denouncing peonage, and punishing one who holds another in that condition of involuntary servitude. This legisOne of the important aspects in the pres- lation is not limited to the territories or ent discussion of the Civil Rights Cases is other parts of the strictly national domain, that the court there proceeded distinctly but is operative in the states and wherever upon the ground that although the Consti- the sovereignty of the United States extution and statutes of a state may not be tends. We entertain no doubt of the validrepugnant to the 13th Amendment, neverity of this legislation, or of its applicability theless, Congress, by legislation of a direct to the case of any person holding another and primary character, may, in order to enforce the Amendment, reach and punish individuals whose acts are in hostility to rights and privileges derived from, or secured by, or dependent upon, that Amend ment. These views were explicitly referred to and reaffirmed in the recent case of Clyatt v. United States, 197 U. S. 207, 49 L. ed. 726, 25 Sup. Ct. Rep. 429. That was an indictment against a single individual for having unlawfully and knowingly returned, forcibly and against their will, two persons from Florida to Georgia, to be held in the latter state in a condition of peonage, in violation of the statutes of the United States (Rev. Stat. 1990, 5526, U. S. Comp. in a state of peonage, and this whether there be municipal ordinance or state law sanc tioning such holding. It operates directly on every citizen of the republic, wherever his residence may be." The Clyatt Case proceeded upon the ground that, although the Constitution and laws of the state might be in perfect harmony with the 13th Amendment, yet the compulsory holding of one individual by another individual for the purpose of compelling the former, by personal service, to discharge his indebtedness to the latter, created a condition of involuntary servitude or peonage, was in derogation of the freedom established by that Amendment, and, therefore, could be reached and punished by the nation. Is it consistent *35 was adopted, how is it possible to say that the combination or conspiracy charged in the present indictment, and conclusively established by the verdict and judgment, was not in hostility to rights secured by the Constitution? I have already said that the liberty protected by the 14th Amendment against state with the principle upon which that case, ery, as it existed when the 13th Amendment rests to say that an organized body of individuals who forcibly prevent free citizens, solely because of their race, from making a living in a legitimate way, do not infringe any right secured by the national Constitution, and may not be reached or pun. ished by the nation? One who is shut up by superior or overpowering force, constantly present and threatening, from earn-action inconsistent with due process of law ing his living in a lawful way of his own is neither more nor less than the freedom choosing, is as much in a condition of in- established by the 13th Amendment. This, voluntary servitude as if he were forcibly I think, cannot be doubted. In Allgeyer v. held in a condition of peonage. In each Louisiana, 165 U. S. 578, 589, 41 L. ed. 832, case his will is enslaved, because illegally 835, 17 Sup. Ct. Rep. 427, 431, we said that subjected, by a combination that he cannot such liberty "means not only the right of resist, to the will of others in respect of the citizen to be free from the mere physical matters which a freeman is entitled to con- restraint of his person, as by incarceration, trol in such way as to him seems best. It but the term is deemed to embrace the right would seem impossible, under former de- of the citizen to be free in the enjoyment of cisions, to sustain the view that a combina- all his faculties; to be free to use them in tion or conspiracy of individuals, albeit act- all lawful ways; to live and work when he ing without the sanction of the state, may will; to earn his livelihood by any lawful not be reached and punished by the United calling; to pursue any livelihood or avocaStates, if the combination and conspiracytion, and for that purpose to enter into all has for its object, by force, to prevent or contracts which may be proper, necessary, burden the free exercise or enjoyment of a and essential to his carrying out to a sucright or privilege created or secured by the cessful conclusion the purposes above menConstitution or laws of the United States. tioned." All these rights, as this court adThe only way in which the present case judged in the Allgeyer Case, are embraced in can be taken out of § 5508 (U. S. Comp. the liberty which the 14th Amendment proStat. 1901, p. 3712), is to hold that a com-tects against hostile state action, when such bination or conspiracy of individuals to pre-state action is wanting in due process of vent citizens of African descent, because of law. They are rights essential in the freetheir race, from freely disposing of their dom conferred by the 13th Amendment. If, labor by contract, does not infringe or vio- for instance, a person is prevented, because late any right or privilege secured by the of his race, from living and working where Constitution or laws of the United States. and for whom he will, or from earning his But such a proposition, I submit, is inad- livelihood by any lawful calling that he missible, if regard be had to former deci- may elect to pursue, then he is hindered in sions. As we have seen, this court has held the exercise of rights and privileges secured that the 13th Amendment, by its own force, to freemen by the Constitution of the Unitwithout the aid of legislation, not only con-ed States. If secured by the Constitution of ferred freedom upon every person (not le- the United States, then, unquestionably, gally held in custody for crime) within the rights of that class are embraced by such jurisdiction of the United States, but the legislation as that found in § 5508. right and privilege of being free from the badges or incidents of slavery. And it has declared that one of the insuperable incidents of slavery, as it existed at the time of the adoption of the 13th Amendment, was the disability of those in slavery to make contracts. It has also adjudged-no member of this court holding to the contrary-conspire to prevent, even by force, citizens that any attempt to subject citizens to the of African descent, solely because of their incidents or badges of slavery could be made race, from earning a living. Such is the an offense against the United States. If import and practical effect of the present the 13th Amendment established freedom, decision, although the court has heretofore and conferred, without the aid of legisla-unanimously held that the right to earn tion, the right to be free from the badges and incidents of slavery, and if the disability to make or enforce contracts for one's personal services was a badge of slav The opinion of the court, it may be observed, does not, in words, adjudge § 5508 to be unconstitutional. But if its scope and effect are not wholly misapprehended by me, the court does adjudge that Congress cannot make it an offense against the United States for individuals to combine or one's living in all legal ways, and to make lawful contracts in reference thereto, is a vital part of the freedom established by the Constitution, and although it has been held, disability to make valid contracts for one's services was, as this court has said, an inseparable incident of the institution of slav. and as a combination or conspiracy to prevent citizens of African descent, solely because of their race, from making and performing such contracts, is thus in hos in the freedom established by that Amendment,-I am of opinion that the case is within § 5508, and that the judgment should be affirmed. For these reasons, I dissent from the opinion and judgment of the court. (203 U. S. 56) CHARLES S. LANDRAM and John A. Broaddus, Executors of Constance K. Vertner, Deceased, and Lillie K. Vertner, Appts., time and again, that Congress may, by appropriate legislation, grant, protect, and enforce any right, derived from, secured or created by, or dependent upon, that instru-ery which the 13th Amendment destroyed; ment. These general principles, it is to be regretted, are now modified, so as to deny to millions of citizen-laborers of African descent, deriving their freedom from the nation, the right to appeal for national pro-tility to the rights and privileges that inhere tection against lawless combinations of individuals who seek, by force, and solely because of the race of such laborers, to deprive them of the freedom established by the Constitution of the United States, so far as that freedom involves the right of such citizens, without discrimination against them because of their race, to earn a living in all lawful ways, and to dispose of their labor by contract. I cannot assent to an interpretation of the Constitution which denies national protection to vast numbers of our people in respect of rights derived by them from the nation. The interpretation now placed on the 13th Amendment is, I think, entirely too narrow, and is hostile to the freedom established by the Supreme Law of the land. It goes far towards neutralizing many declarations made as to the object of the recent Amendments of the Constitution, a common purpose of which, this court has said, was to secure to a people theretofore in servitude, the free enjoyment, without discrimination merely on account of their race, of the essential rights that appertain to American citizenship and to freedom. United States v. Reese, 92 U. S. 214, 217, 23 L. ed. 563, 564; United States v. Cruikshank, 92 U. S. 542, 555, 23 L. ed. 588, 592; Virginia v. Rives (Ex parte Virginia) 100 U. S. 334, 25 L. ed. 675; Ex parte Virginia, 100 U. S. 345, 25 L. ed. 679; Strauder v. West Virginia, 100 U. S. 306, 25 L. ed. 665; Neal v. Delaware, 103 U. S. 386, 26 L. ed. 570; Civil Rights Cases, 109 U. S. 3, 23, 27 L. ed. 835, 843, 3 Sup. Ct. Rep. 18. The objections urged to the view taken by the court are not met by the suggestion that this court may revise the final judgment of the state court, if it should deny to the complaining party a right secured by the Federal Constitution; for the revisory power of this court would be of no avail to the complaining party if it be true, as seems now to be adjudged, that a conspiracy to deprive colored citizens, solely because of their race, of the right to earn a living in a lawful way, infringes no right secured to them by the Federal Constitution. GABRIELLA K. JORDAN. Appeal-questions reviewable-who may be heard. 1. One who succeeds, on a bill of review, in having upheld as to her alone a trust declared void by the original decree, cannot, on appeal, where she does not herself appeal, go beyond supporting the modified decree and opposing every assignment of error.* Testamentary trust-effect of partial invalidity-perpetuities. 2. An equitable life estate given to a niece of the testator in the income from a specified piece of land excepted from the general scheme for the creation of a trust fund from the rents of the testator's real property for the benefit of his grandchildren does not fail because of the repugnancy of the effect of which is to give the testator's this scheme to the rule against perpetuities, daughter all the rest of the property, including the remainder in the life estate; nor does this result follow because the trustees are directed to keep such income up to $40 per month from the other property included in the trust Bill of review-parties. 3. The objection that the widow of the testator's son should have been made a party to a bill to review a decree declar- As the nation has destroyed both slavery and involuntary servitude everywhere with- Argued October 9, 1906. Decided October in the jurisdiction of the United States, and invested Congress with power, by appropriate legislation, to protect the freedom thus established against all the badges and incidents of slavery as it once existed; as the 27 S.C.-2 22, 1906. *Ed. Note.-For cases in point. see vol. 3, Cent. Dig. Appeal and Error, §§ 3573, 3575, 3576, 3578. +Ed. Note.-For cases in point, see vol. 49, Cent. Dig. Wills, 1644. A PPEAL from the Court of Appeals of the District of Columbia to review a decree which affirmed a decree of the Supreme Court of the District, modifying, on demurrer to a bill of review, a decree which declared a trust to violate the rule against perpetuities, and upholding such trust as to the party filing such bill. Affirmed. See same case below, 25 App. D. C. 291. The facts are stated in the opinion. Messrs. John J. Hemphill and James Hemphill for appellants. my desire that she shall have a regular income of at least $40 per month, and that the same shall be paid over to her monthly; but if the income derived from said premises shall amount to a sum in excess of $40 per month, she shall have the whole thereof." (Rec. 10.) Item 7 directs the trustee to let all the Washington property, except 611 M street, and out of the rents to pay $90 a month to the testator's daughter, Constance K. Vertner, as ordered in item 5; the residue, so Messrs. Charles F. Wilson and Frank W. far as necessary, to be applied to the supHackett for appellee. port and education of her three children, gives the remainder in fee of 611 M street to the testator's grandson, provided that if Mr. Frank Sprigg Perry for Mary B. named, with further provisions. Item 8 Kearney. *Mr. Justice Holmes delivered the opinion Gabriella Jordan dies before January 1, of the court: This is an appeal from a decree of the court of appeals of the District of Columbia affirming a decree of the supreme court upon a bill of review brought by Gabriella K. Jordan, the appellee. The decree under review was rendered in a suit for the construction of the will of Thomas Kearney and for the determination of the validity of a trust created by it, so far as the same concerned land in the District of Columbia. That decree declared the trust bad as attempting to create a perpetuity. Under the bill of review the decree was modified, on demurrer, to the extent of the interest of Gabriella K. Jordan, and the trust was declared valid as to her. 25 App. D. C. 291. The executors of the testator's heirs and a daughter of the said heir appealed to this court. 1928, he shall only receive the rents and profits, and if she dies before the grandson reaches the age of twenty-two the rents shall be disposed of as provided in item 7 as to other Washington property. In item 21, the testator, "for fear that there may be some difficulty in construing the different provisions" of the will, states his intention that all the money arising from the Washington rents, "except that which is to go to Gabriella K. Jordan, shall be placed in a common fund for the payment (1) of taxes, insurance and repairs on said property and of the premises at Luray, Virginia; (2) of (90) ninety dollars per month to my said daughter, Constance K. Vertner. during her natural life; (3) for the support, education, and maintenance of my said three Vertner grandchildren until Lillie K. Vertner shall have arrived at the age of nineteen years, and until Edmund K. and Thomas K. shall have arrived at the age of twenty-two years respectively." Thomas Kearney died on July 5, 1896. The will disposes of land in various places. In item 3 it enumerates the testator's property in Washington. In item 5 it devises The persons in whose favor were made this and other property upon a trust to be the provisions which were adjudged bad continued until January 1, 1928, and there were one of the testator's heirs, his daugh and elsewhere, with the following exception, ter, Constance K. Vertner, and the children makes a fund from the Washington rents of Constance. The daughter pleaded that and profits to be disposed of as directed in the will. Item 6 is as follows: "I hereby authorize and direct that my said trustee shall, during the natural life of my beloved niece, Gabriella K. Jordan, pay over to her regularly each month, as soon as collected, all rents and revenues collected or derived from that certain property described in the third item hereof as lot No. 611 'M' Street, N. W., Washington, D. C.; but, in case said rents and revenues shall at any time be less than the sum of $40 for any one or more months, then my said trustees are hereby authorized and instructed to add to the sum so collected a sufficient amount to make the said amount of $40 for each and every month; it being the other heir, Edmund Kearney, also provided for in the will, died, leaving her his heir, that the trust was bad, and, by implication, that she was entitled to the property which it embraced. She now is dead. By the original decree the whole trust fund, including that given to Gabriella Jordan, went to the testator's heirs as property undisposed of by the will. The only person dissatisfied with that decree was Gabriella Jordan, and, on the other hand, the executors and the children of Constance are the only appellants from the decree on review. According to the rule that has been laid down in this court, Gabriella, as she did not appeal, cannot go beyond supporting the decree and opposing every assignment of error. 09. |