lished freedom and conferred upon every person within the jurisdiction of the United States (not held lawfully in custody for crime) the privileges that are fundamental in a state of freedom, and which were violently taken from the laborers in question solely because of their race and color.

Let us see whether these principles do not find abundant support in adjudged cases.

ceding 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 de-
prive any person of the rights thus con-
ferred upon them. Without having this
power, Congress* could not enforce the [30]
Amendment. It cannot be doubted, there-
fore, 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 13th 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 of-
fenses 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. . . . Toil-
lustrate: 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 ex-
pel him and prevent him from the accom-
plishment of his purpose on account of his
race or color, it cannot be doubted that this
would be a case within the power of Con-
gress to remedy and redress. It would be
a case of interference with that person's
exercise of his equal rights as a citizen be-
cause 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."

One of the earliest cases arising under the 13th Amendment was that of United States v. Cruikshank, 1 Woods, 308, 318. 320, Fed. Cas. No. 14,897. It became necessary in that case for Mr. Justice Bradley, holding the circuit court, to consider the scope and effect of the 13th Amendment and the extent of the power of Congress to enforce its provisions. Referring to the 13th Amendment, that eminent jurist said that "this is not merely a prohibition against the [29] passage or enforcement of any law inflicting or establishing slavery or involuntary servitude, but it is a positive declaration that slavery shall not exist. .. So, undoubtedly, by the 13th Amendment, Congress has power to legislate for the entire eradication of slavery in the United States. This Amendment had an affirmative opera- | tion the moment it was adopted. It enfranchised four millions of slaves, if, indeed, they had not previously been enfranchised by the operation of the Civil War. Congress, therefore, acquired the power not only to legislate for the eradication of slavery, but the power to give full effect to this bestowment of liberty on these millions of people. All this it essayed to do by the civil rights bill passed April 9, 1866 (14 Stat. at L. 27, chap. 31), by which it was declared that all persons born in the United States, and not subject to a foreign power (except Indians, not taxed), should be citizens of the United States; and that such citizens, of every race and color, without any regard to any previous condition of slavery or involuntary servitude. should have the same right, in every state and territory, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, This was followed by the Civil Rights hold, nd convey, real and personal property, Cases, 109 U. S. 3, 20, 22, 27 L. ed. 835, 842, and to full and equal benefit of all laws and 843, 3 Sup. Ct. Rep. 18, 28, 29, in which the proceedings for the security of persons and court passed upon the constitutionality of property, as is enjoyed by white citizens, an act of Congress providing for the full and and should be subject to like punishment, equal enjoyment by every race, equally, of pains and penalties, and to none other, any the accommodations, advantages, and facililaw, etc., to the contrary notwithstanding. ties of theaters and public conveyances, and It was supposed that the eradication of other places of public amusement; and in slavery and involuntary servitude of every which the court also considered the scope form and description required that the slave and effect of the 13th Amendment. In that should be made a citizen and placed on an case the court, speaking by Mr. Justice entire equality before the law with the white Bradley,-*who, as we have seen, delivered [31] citizen, and, therefore, that Congress had the judgment in the case just cited, said: the power, under the Amendment, to declare "By its own unaided force and effect it aboland effectuate these objects. Con-ished slavery and established universal free

dom.

must necessarily be and can only be corrective in its character, addressed to counteract and afford relief against state regulations or proceedings."

Still, legislation may be necessary, and incidents of slavery and involuntary and proper to meet all the various cases servitude, may be direct and primary, operand circumstances to be affected by it, and ating upon the acts of individuals, whether to prescribe proper modes of redress for its sanctioned by state legislation or not; unviolation in letter or spirit. And such leg-der the 14th, as we have already shown, it islation may be primary and direct in its character; for the Amendment is not a mere prohibition of state laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall I participated in the decision of the Civil not exist in any part of the United States. Rights Cases, but was not able to concur It is true that slavery cannot exist without with my brethren in holding the act there law, any more than property in lands and involved to be beyond the power of Congoods can exist without law; and, therefore, gress. But I stood with the court in the the 13th Amendment may be regarded as declaration that the 13th Amendment not nullifying all state laws which establish or only established and decreed universal civil uphold slavery. But it has a reflex charac- and political freedom throughout this land, ter also, establishing and decreeing universa! | but abolished the incidents or badges of civil and political freedom throughout the slavery, among which, as the court declared, United States; and it is assumed that the was the disability, based merely on race power vested in Congress to enforce the arti- discrimination, to hold property, to make cle by appropriate legislation clothes Con- contracts, to have a standing in court, and gress with power to pass all laws necessary to be a witness against a white person. 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

One of the important aspects in the present discussion of the Civil Rights Cases is that the court there proceeded distinctly upon the ground that although the Constitution and statutes of a state may not be repugnant to the 13th Amendment, nevertheless. Congress, by legislation of a direct and primary character, may, in order to enforce the Amendment, reach and punish individuals whose acts are in hostility *to[33] rights and privileges derived from, or secured by, or dependent upon, that Amendment.

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

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 proc[32]ess of law, and *from denying to any the equal protection of the laws. The Amend-States (Rev. Stat. 1990, 5526, U. S. Comp. 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 of the privileges or immunities of citizens of the United States, or to deprive them of life, liberty, or property without due process of law, or to deny to any of them the equal protection of the laws. Under the 13th Amendment, the legislation, so far as necessary or proper to eradicate all forms

gia. The argument there on behalf of the accused was, in part, that the 13th Amendment was directed solely against the states and their laws, and that its provisions could not be made applicable to individuals whose illegal conduct was not authorized, permitted, or sanctioned by some act, resolution, order, regulation, or usage of the state.

the citizen to be free from the mere physical restraint of his person, as by incarceration, but the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work when he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary, and essential to his carrying out to a successful conclusion the purposes above mentioned." All these rights, as this court adjudged in the Allgeyer Case, are embraced in the liberty which the 14th Amendment protects against hostile state action, when such state action is wanting in due process of law. They are rights essential in the freedom conferred by the 13th Amendment. If, for instance, a person is prevented, because of his race, from living and working where and for whom he will, or from earning his livelihood by any lawful calling that he may elect to pursue, then he is hindered in the exercise of rights and privileges secured to freemen by the Constitution of the United States. If secured by the Constitution of the United States, then, unquestionably, rights of that class are embraced by such legislation as that found in § 5508.

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

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 judg ment 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[38] lawful way, infringes no right secured to them by the Federal Constitution.

United States for individuals to combine or conspire to prevent, even by force, citizens of African descent, solely because of their race, from earning a living. Such is the import and practical effect of the present decision, although the court has heretofore As the nation has destroyed both slavery unanimously held that the right to earn one's living in all legal ways, and to make and involuntary servitude everywhere withlawful contracts in reference thereto, is a in the jurisdiction of the United States, and vital part of the freedom established by the invested Congress with power, by appropriConstitution, and although it has been held, established against all the badges and inciate legislation, to protect the freedom thus time and again, that Congress may, by ap-dents of slavery as it once existed; as the [37]propriate legislation, grant, protect, and endisability to make valid contracts for one's force any right, derived from, secured or services was, as this court has said, an increated by, or dependent upon, that instru- separable incident of the institution of slavment. These general principles, it is to be ery which the 13th Amendment destroyed; regretted, are now modified, so as to deny and as a combination or conspiracy to preto millions of citizen-laborers of African de- vent citizens of African descent, solely scent, deriving their freedom from the na- because of their race, from making and tion, the right to appeal for national pro- performing such contracts, is thus in hostection against lawless combinations of in-tility to the rights and privileges that inhere dividuals 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

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.