(5) Involuntary Servitude Case Summaries
These cases were found by searching the findlaw.com database for "involuntary servitude" in the Supreme Court decisions. How the political and judicial branches of the federal and state governments would respect the 13th amendment remained to be seen after the Civil War ended and this amendment became part of the Constitution back in 1865. As far as the courts were concerned, what would they do when a case was brought before them where the political departments had a strong interest in having powers upheld that coerced people, through fines and imprisonment, into doing things that the politicians wanted without seeking the consent of the people?
In 533AD, during the reign of Roman Emperor Justinian, a book called THE INSTITUTES OF JUSTINIAN became available so that Roman citizens could get an understanding of Roman law. Liber Secundus (Book 2), Title IV is entitled "De Usufructu." Usufruct is a principle of Roman law that the INSTITUTES defines as follows: "Usufruct is the right to use and enjoy things belonging to others, provided that the substance of the things used remains unimpaired. For it is a right over something corporeal; and if this thing perishes, the usufruct itself necessarily perishes also." D. vii. 1. 1,2 (THE INSTITUTES OF JUSTINIAN, by Thomas Collett Sandars, M.A., Longman's, Green, & Co., N.Y., 1903, pg. 125) The right of usufruct always applied to slaves, because the slave's labor and services were at the disposal of the slave's master. "So too, he who has the use of a slave, has only the right of himself using the labor and services of the slave...." D. vii. 8. 5,6 (pg. 132) If those who rule over you can use the force of law to determine what your allowance will be from your labor, have not those in power gained the use of your labor without seeking your consent?
The courts were left with two options after the 13th amendment: They would either remind the politicians that exceptions to the 13th amendment must be clarified to the people by a further amendment to the Constitution; or they would use fiction of law and carve out exceptions to the 13th amendment. Today, we have a record, and sadly, the courts have shown time and time again that they stand willing to carve out exceptions whenever the politicians want something bad enough that any person with common sense can see is a servitude. But the main problem with slavery is what Abraham Lincoln called a "thick coating," meaning that an institution of slavery is always surrounded by enormous sums of money since the slaves that are exploited number in the millions. In fact, I would submit that the enslavement and plunder of the Jews under the National Socialists back in Hitler's day was far more oppressive than pre Civil War slavery was in America, and the National Socialists didn't have to pay one penny to secure the use of the Jewish people's labor.
It cannot be denied that the federal and state governments of today tax and garnish people's labor on a massive scale. Basically, what socialism does is enslave A for the benefit of B. How many billions of dollars of labor per year that is extorted from workers by the force of law I do not know, but the amount is no doubt enormous. I therefore thought it to be appropriate to fully quote Lincoln where he spoke of a "thick coating."
"Look at the magnitude of the subject. One sixth of our population, in round numbers.....are slaves. The owners of these slaves consider them property. The effect upon the minds of the owners is that of property, and nothing else; it induces them to insist upon all that will favorably affect its value as property, to demand laws and institutions and a public policy that shall increase and secure its value, and make it durable, lasting, and universal. The effect on the minds of the owners is to persuade them that there is no wrong in it. The slaveholder does not like to be considered a mean fellow for holding that species of property, and hence he has to struggle within himself, and sets about arguing himself into the belief that slavery is right. The property influences his mind. The dissenting minister who argued some theological point with one of the established church was always met with the reply, ‘I can't see it so.' He opened his Bible and pointed him to a passage, but the orthodox minister replied, ‘I can't see it so.' Then he showed him a single word - ‘Can you see that?' Yes, I see it,' was the reply. The dissenter laid a guinea (gold coin) over the word, and asked, ‘Do you see it now?' So here. Whether the owners of this species of property do really see it as it is, it is not for me to say; but if they do, they see it as it is through two billions of dollars, and that is a pretty thick coating. Certain it is that they do not see it as we see it. Certain it is that this two thousand million of dollars invested in this species of property is all so concentrated that the mind can grasp it at once. This immense pecuniary interest has its influence upon their minds." (THE COMPLETE WORKS OF ABRAHAM LINCOLN, The Tandy - Thomas Co., N.Y., 1905, Vol. V, pp. 343-44)
By using legal fictions slavery, its badges, and all its other attendant evils can be brought back upon a people under the banner of freedom. The involuntary servitude case summaries that follow are important, for these cases reveal the fictions the court has used to legalize certain servitudes and legal remedies that Congress passed shortly after the Civil War that enforce the 13th and 14thamendments. Therefore, a lot of quotes from these cases are included.
*************************************************************************************************************************
1. Robertson v. Baldwin 165 U.S. 275 (1897): Case that justified forced duty imposed upon sailors (non-military) on ships. Fiction used to deny involuntary servitude. Cites from the case:
"The amendment, however, makes no distinction between a public and a private service. To say that persons engaged in a public service are not within the amendment is to admit that there are exceptions to its general language, and the further question is at once presented, where shall the line be drawn? We know of no better answer to make than to say that services which have from time immemorial been treated as exceptional shall not be regarded as within its purview. From the earliest historical period the contract of the sailor [165 U.S. 275, 283] has been treated as an exceptional one, and involving, to a certain extent, the surrender of his personal liberty during the life of the contract." (282-83)
Mr. Justice HARLAN, dissenting
"Slavery exists wherever the law recognizes a right of property in a human being, but slavery cannot exist in any form within the United States. The thirteenth amendment uprooted slavery as it once existed in this country, and destroyed all of its badges and incidents. It established freedom for all. 'By its own unaided force and effect it abolished slavery and established freedom.' The amendment, this court has also said, 'is not a mere prohibition of state laws establishing or upholding slavery or involuntary servitude, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.' Civil Rights Cases, 109 U.S. 1, 20 , 3 S. Sup. Ct. 18. As to involuntary servitude, it may exist in the United States; but it can only exist lawfully as a punishment for crime of which the party shall have been duly convicted. Such is the plain reading of the constitution. A condition of enforced service, even for a limited period, in the private business of another, is a condition of involuntary servitude." (293)
"In considering the antiquity of regulations that restrain the personal freedom of seamen, the court refers to the laws of the ancient Rhodians, which are supposed to have antedated the Christian era. But those laws, whatever they may have been, were enacted at a time when no account was taken of a man as man, when human life and human liberty were regarded as of little value, and when the powers of government were employed to gratify the ambition and the pleasures of despotic rulers rather than promote the welfare of the people. Attention has been called by the court to the laws enacted by the towns of the Hanseatic League 300 years ago, by one of which a seaman who went ashore without leave could, in certain contingencies, be kept in prison 'upon bread [165 U.S. 275, 294] and water for one year,' and by another of which an officer or seaman who quit his ship and concealed himself could be apprehended and 'stigmatized in the face with the first letter of the name of the town to which he belongs.' Why the reference to these enactments of ancient times, enforced by or under governments possessing arbitrary power inconsistent with a state of freedom? Does any one suppose that a regulation of commerce authorizing seamen who quit their ship, without leave, to be imprisoned 'upon bread and water for one year,' or which required them to be 'stigmatized in the face' with the letter of the town or state to which they belonged, would now receive the sanction of any court in the United States?" (293-94)
"It is, in substance and effect, a contract for servitude, with no limitation but that of time; leaving the master to determine what the service should be, and the place where and the person to whom it should be rendered. Such a contract, it is scarcely necessary to say, is against the policy of our institutions and laws. If such a sale of service could be lawfully made for five years, it might, from the same reasons, for ten, and so for the term of one's life. The door would thus be opened for a species of servitude inconsistent with the first and fundamental article of our declaration of rights, which, proprio vigore, not only abolished every vestige of slavery then existing in the commonwealth, but rendered every form of it thereafter legally impossible." (295)
"The thirteenth amendment, although tolerating involuntary servitude only when imposed as a punishment for crime, of which the party shall have been duly convicted, has been construed, by the decision just rendered, as if it contained an additional clause expressly excepting from its operation seamen who engage to serve on private vessels. Under this view of the constitution, we may now look for advertisements, not for runaway servants as in the days of slavery, but for runaway seamen. In former days, overseers could stand with whip in hand over slaves, and force them to perform personal service for their masters. While, with the assent of all, that condition of things has ceased to exist, we can but be reminded of the past, when it is adjudged to be consistent with the law of the land for freemen, who happen to be seamen, to be held in custody, that they may be forced to go aboard private vessels, and render personal services against their will." (303)
2. Butler v. Perry 240 U.S. 328 (1916): Case that justified forced road work. Fiction used to deny involuntary servitude. Cites from the case:
"In view of ancient usage and the unanimity of judicial opinion, it must be taken as settled that, unless restrained by some constitutional limitation, a state has inherent power to require every able-bodied man within its jurisdiction to labor for a reasonable time on public roads near his residence without direct compensation. This is a part of the duty which he owes to the public. The law of England is thus declared in Blackstone's Commentaries, bk. 1, page 357:
'Every parish is bound of common right to keep the [240 U.S. 328, 331] highroads that go through it in good and sufficient repair; unless by reason of the tenure of lands, or otherwise, this care is consigned to some particular private person. From this burthen no man was exempt by our ancient laws, whatever other immunities he might enjoy: this being part of the trinoda necessitas, to which every man's estate was subject; viz., expeditio contra hostem, arcium constructio, et pontium reparatio. For, though the reparation of bridges only is expressed, yet that of roads also must be understood; as in the Roman law, with respect to the construction and repairing of ways and bridges no class of men of whatever rank or dignity should be exempted.'
The trinoda necessitas was an obligation falling on all freemen, or at least on all free householders. Vinogradoff, English Society in the Eleventh Century, p. 82." (330-31)
"Utilizing the language of the ordinance of 1787, the 13th Amendment declares that neither slavery nor involuntary servitude shall exist. This Amendment was adopted with reference to conditions existing since the foundation of our government, and the term 'involuntary servitude' was intended to cover those forms of compulsory labor akin to African slavery which, in practical operation, would tend to produce like undesirable results. [240 U.S. 328, 333] It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state, such as services in the army, militia, on the jury, etc. The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers. (332- 33)
"There is no merit in the claim that a man's labor is property, the taking of which without compensation by the state for building and maintenance of public roads violates the due process clause of the 14th Amendment. That Amendment was intended to preserve and protect fundamental rights long recognized under the common law system. Conceding for some purposes labor must be considered as property, it is evident from what already has been said that to require work on the public roads has never been regarded as a deprivation of either liberty or property." (333) [Note - In 1858, Jefferson Davis, in a speech he gave at Bangor, Maine stated: "If the inhabitants of any Territory should refuse to enact such laws and police regulations as would give security to their property or to his, it would be rendered more or less valueless in proportion to the difficulties of holding it without such protection. In the case of property in the labor of man, or what is usually called slave property, the insecurity would be so great that the owner could not ordinarily retain it." THE COMPLETE WORKS OF ABRAHAM LINCOLN, Vol. V, pg. 24]
3. Arver v. U.S. 245 U.S. 366 (1918): Case that justified forced military service. Fiction used to deny involuntary servitude. Cites from the case:
"The possession of authority to enact the statute must be found in the clauses of the Constitution giving Congress power 'to declare war; ... to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; ... to make rules for the government and regulation of the land and naval forces.' Article 1, 8. And of course the powers conferred by these provisions like all other powers given carry with them as provided by the Constitution the authority 'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.' Article 1, 8. [Note: The Constitution grants to Congress the power to lay and collect taxes. Does this mean that Congress has the power to enslave people to accomplish this also?]
"As the mind cannot conceive an army without the men to compose it, on the face of the Constitution the objection that it does not give power to provide for such men would seem to be too frivolous for further notice. It is said, however, that since under the Constitution as originally framed state citizenship was primary and United States citizenship but derivative and dependent thereon, therefore the power conferred upon Congress to raise armies was only coterminous with United States citizenship and could not be exerted so as to cause that citizenship to lose its dependent character and dominate state citizenship. But the proposition simply denies to Congress the power to raise armies which the Constitution gives. That power by the very terms of the Constitution, being delegated, is supreme. Article 6. In truth the contention simply assails the wisdom of the framers of the Constitution in conferring authority on Congress and in not retaining it as it was under the Confederation in the several states. Further it is said, the right to provide is not denied by calling for volunteer enlistments, but it does not and [245 U.S. 366, 378] cannot include the power to exact enforced military duty by the citizen. This however but challenges the existence of all power, for a governmental power which has no sanction to it and which therefore can only be exercised provided the citizen consents to its exertion is in no substantial sense a power." (377-78)
"In England it is certain that before the [245 U.S. 366, 379] Norman Conquest the duty of the great militant body of the citizens was recognized and enforceable. Blackstone, book I, c. 13. It is unnecessary to follow the long controversy between Crown and Parliament as to the branch of the government in which the power resided, since there never was any doubt that it somewhere resided. So also it is wholly unnecessary to explore the situation for the purpose of fixing the sources whence in England it came to be understood that the citizen or the force organized from the militia as such could not without their consent be compelled to render service in a foreign country, since there is no room to contend that such principle ever rested upon any challenge of the right of Parliament to impose compulsory duty upon the citizen to perform military duty wherever the public exigency exacted whether at home or abroad. This is exemplified by the present English Service Act." (379) [Note: All of these old systems that are referred to recognized slavery as an institution.]
"Finally, as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation as the result of a war declared by the great representative body of the people can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement." (390) [Note: Here is a prime example of legal fiction at work. It is a plea to the emotions, not logic and reason. Anyone with common sense can see that their is no consent involved when people are drafted into the military, and after being drafted the person is forced to obey the orders of superiors or be punished by military codes. It only stands to reason that the court would go back in history and cite the way despotic governments of old treated people when slavery was an institution to justify their despotic position. As Thomas Jefferson stated: "You seem to consider the judges as the ultimate arbiters of all constitutional questions - a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps." THE COMPLETE WORKS OF ABRAHAM LINCOLN, Vol. III, pg. 179]
4. Clyatt v. U.S. 197 U.S. 207 (1905): Peonage Case. Servitude imposed for payment of debt. Cites from the case:
"The constitutionality and scope of 1990 and 5526 present the first questions for our consideration. They prohibit peonage. What is peonage? It may be defined as a status or condition of compulsory service, based upon the indebtedness of the peon to the master. The basal fact is indebtedness. As said by Judge Benedict, delivering the opinion in Jaremillo v. Romero, 1 N. M. 190, 194: 'One fact existed universally: all were indebted to their masters. This was the cord by which they seemed bound to their master's service.' Upon this is based a condition of compulsory service. Peonage is sometimes classified as voluntary or involuntary; but this implies simply a difference in the mode of origin, but none in the character of the servitude. The one exists where the debtor voluntarily contracts to enter the service of his creditor. The other is forced upon the debtor by some provision of law. But peonage, however created, is compulsory service,- involuntary servitude. The peon can release himself therefrom, it is true, by the payment of the debt, but otherwise the service is enforced. A clear distinction exists between peonage and the voluntary performance of labor or rendering of services in payment of a debt. In the latter case the debtor, though contracting to pay his indebtedness by labor or service, and subject, like any other contractor, to an action for damages for breach of that contract, can elect at any time to break it, and no law or force compels [197 U.S. 207, 216] performance or a continuance of the service." (215- 16)
"He may also arrest an individual for the purpose of placing him in a condition of peonage, and this whether he be the one to whom the involuntary service is to be rendered or simply employed for the purpose of making the arrest. Or he may, after one has fled from a state of peonage, return him to it, and this whether he himself claims the service or is acting simply as an agent of another to enforce the return." (219)
5. Hodges v. U.S. 203 U.S. 1 (1906): Case involving forced labor at a lumber mill. Cites from the case:
"The 13th Amendment reads:
'Sec. 1. 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.
'Sec. 2. Congress shall have power to enforce this article by appropriate legislation.'
"The meaning of this is as clear as language can make it. The things denounced are slavery and involuntary servitude, and Congress is given power to enforce that denunciation. All understand by these terms a condition of enforced compulsory service of one to another. While the inciting cause of the Amendment was the emancipation of the colored race, yet it is not an attempt to commit that race to the care of the nation. It is the denunciation of a condition, and not a decla- [203 U.S. 1, 17] ration in favor of a particular people. It reaches every race and every individual, and if in any respect it commits one race to the nation, it commits every race and every individual thereof. Slavery or involuntary servitude of the Chinese, of the Italian, of the Anglo-Saxon, are as much within its compass as slavery or involuntary servitude of the African. Of this Amendment it was said by Mr. Justice Miller in Slaughter-House Cases, 16 Wall. 69, 21 L. ed. 406: 'Its two short sections seem hardly to admit of construction.' And again: 'To withdraw the mind from the contemplation of this grand yet simple declaration of the personal freedom of all the human race within the jurisdiction of this government . . . requires an effort, to say the least of it.'" (16-17)
"In slave times in the slave states not infrequently every free negro was required to carry with him a copy of a judicial decree or other evidence of his right to freedom or be subject to arrest. That was one of the incidents or badges of slavery." (19) [Note: What about drivers license, registration, and proof of insurance today?]
Harlan, Dissenting
"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." (31)
"As the nation has destroyed both slavery and involuntary servitude everywhere within 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." (38)
6. Pollock v. Williams 322 U.S. 4 (1944): Peonage Case. Pollock was a poor & ignorant negro. Fla. Statute that imposed peonage held unconstitutional. Cites from the case:
"The Thirteenth Amendment to the Federal Constitution, made in 1865, declares that involuntary servitude [322 U.S. 4, 8] shall not exist within the United States and gives Congress power to enforce the article by appropriate legislation. 7 Congress on March 2, 1867, enacted that all laws or usages of any state 'by virtue of which any attempt shall hereafter be made to establish, maintain, or enforce, directly or indirectly, the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise,' are null and void, and denounced it as a crime to hold, arrest, or return a person to the condition of peonage. 8 Congress thus raised both a shield and a sword against forced labor because of debt." (7-8)
"Especially in view of the undenied assertions in Pollock's petition we cannot doubt that the presumption provision had a coercive effect in producing the plea of guilty. The statute laid its undivided weight upon him. The legislature had not even included a separability clause. 22 Of course the function of the prima facie evidence section is to make it possible to convict where proof of guilt is lacking. No one questions that we clearly have held that such a presumption is prohibited by the Constitution and the federal statute. The Florida Legislature has enacted and twice re-enacted it since we so held. We cannot assume it was doing an idle thing. Since the presumption was known to be unconstitutional and of no use in a contested case, the only explanation we can find for its persistent appearance in the statute is its extra-legal coercive effect in suppressing defenses. It confronted this defendant. There was every probability that a law so recently and repeatedly enacted by the legislature would be followed by the trial court, whose judge was not required to be a lawyer. The possibility of obtaining relief by appeal was not bright, as the event proved, for Pollock had to come all the way to this Court and was required, and quite regularly, to post a supersedeas bond of $500, a hundred times the amount of his debt. He was an illiterate Negro laborer in the toils of the law for the want of $5. Such considerations bear importantly on the decision of a prisoner even if aided by counsel, as Pollock was not, whether to plead guilty and hope for leniency or to fight. It is plain that, had his plight after conviction [322 U.S. 4, 16] not aroused outside help, Pollock himself would have been unheard in any appellate court." (15-16)
"As we have seen, Florida, persisted in putting upon its statute books a provision creating a presumption of fraud [322 U.S. 4, 17] from the mere nonperformance of a contract for labor service three times after the courts ruled that such a provision violates the prohibition against peonage. To attach no meaning to such action, to say that legally speaking there was no such legislation, is to be blind to fact. Since the Florida Legislature deemed these repeated enactments to be important, we take the Legislature at its own word. Such a provision is on the statute books for those who are arrested for the crime, and it is on the statute books for us in considering the practical meaning of what Florida has done." (16-17)
"The undoubted aim of the Thirteenth Amendment as implemented by the Antipeonage Act was not merely to end slavery but to maintain a system of completely free and voluntary labor throughout the United States. Forced labor in some special circumstances may be consistent with the general basic system of free labor. For example, forced labor has been sustained as a means of punishing crime,27 and there are duties such as work on [322 U.S. 4, 18] highways28 which society may compel. But in general the defense against oppressive hours, pay, working conditions, or treatment is the right to change employers. When the master can compel and the laborer cannot escape the obligation to go on, there is no power below to redress and no incentive above to relieve a harsh overlordship or unwholesome conditions of work. Resulting depression of working conditions and living standards affects not only the laborer under the system, but every other with whom his labor comes in competition. Whatever of social value there may be, and of course it is great, in enforcing contracts and collection of debts, Congress has put it beyond debate that no indebtedness warrants a suspension of the right to be free from compulsory service. This congressional policy means that no state can make the quitting of work any component of a crime, or make criminal sanctions available for holding unwilling persons to labor. The federal statutory test is a practical inquiry into the utilization of an act as well as its mere form and terms....Where peonage has existed in the United States it has done so chiefly by virtue of laws like the statute in question." (17-18)
"It is true that in each opinion dealing with statutes of this type this Court has expressly recognized the right of the state to punish fraud, even in matters of this kind, by statutes which do not either in form or in operation lend themselves to sheltering the practice of peonage. Deceit is not put beyond the power of the state because the cheat is a laborer nor because the device for swindling is an agreement to labor. But when the state undertakes to deal with this specialized form of fraud, it must respect the constitutional and statutory command that it may not make failure to labor in discharge of a debt any part of a crime. It may not directly or indirectly command involuntary servitude, even if it was voluntarily contracted for." (24)
7. U.S. v. Kozminzki 487 U.S. 931 (1988): Two retarded men coerced to work on a Michigan farm by the Kozminzkis. Kozminzkis were criminally prosecuted under Title 18, Sections 241 &1584. Involuntary servitude defined by the court. Cites from case:
"The court held that involuntary servitude exists only when the master subjects the servant to (1) threatened or actual physical force, (2) threatened or actual state-imposed legal coercion, or (3) fraud or deceit where the servant is a minor or an immigrant or is mentally incompetent.
Held:
For purposes of criminal prosecution under 241 or 1584, the term "involuntary servitude" necessarily means a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury or by the use or threat of coercion through law or the legal process. This definition encompasses cases in which the defendant holds the victim in servitude by placing him or her in fear of such physical restraint or injury or legal coercion. Pp. 939-953.
(a) The Government cannot prove a 241 conspiracy to violate rights secured by the Thirteenth Amendment without proving that the conspiracy [487 U.S. 931, 932] involved the use or threatened use of physical or legal coercion. The fact that the Amendment excludes from its prohibition involuntary servitude imposed "as a punishment for crime whereof the party shall have been duly convicted" indicates that the Amendment's drafters thought that involuntary servitude generally includes situations in which the victim is compelled to work by law." (931-32)
"The Kozminskis failed to provide Fulmer and Molitoris with adequate nutrition, housing, clothing, or medical care." (935) [Note: They were poor masters to their slaves]
"Section 241 authorizes punishment when
‘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.'" (941)
"Section 1584 authorizes criminal punishment of
‘[w]hoever knowingly and willfully holds to involuntary servitude or sells into any condition of involuntary servitude any other person for any term.'"(944)
"Absent change by Congress, we hold that, for purposes of criminal prosecution under 241 or 1584, the term "involuntary servitude" necessarily means a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through law or the legal process. This definition encompasses those cases in which the defendant holds the victim in servitude by placing the victim in fear of such physical restraint or injury or legal coercion." (952)
"For ‘servitude' generally denotes a relation of complete domination and lack of personal liberty resembling the conditions in which slaves were held prior to the Civil War. Thus, in 1910 and 1949, Webster's defined ‘servitude' as the ‘[c]ondition of a slave; slavery; serfdom; bondage; state of compulsory subjection to a master.'" (931)
8. Bailey v. Alabama 219 U.S. 219 (1911): Peonage case. Bailey was a poor negro who was punished by Alabama law for not laboring to repay a debt. Good case with many good quotes. Alabama statute held repugnant to the 13th amendment. Cites from the case:
"We cannot escape the conclusion that, although the statute in terms is to punish fraud, still its natural and inevitable effect is to expose to conviction for crime those who simply fail or refuse to perform contracts for personal service in liquidation of a debt; and judging its purpose by its effect, that it seeks in this way to provide the means of compulsion through which performance of such service may be secured. The question is whether such a statute is constitutional....This court has frequently recognized the general power of every legislature to prescribe the evidence which shall be received, and the effect of that evidence, in the courts of its own government. Fong Yue Ting v. United States, 149 U.S. 698, 479 , 37 S. L. ed. 905, 925, 13 Sup. Ct. Rep. 1016. In the exercise of this power numerous statutes have been enacted providing that proof of one fact shall be prima facie evidence of the main fact in issue; and where the inference is not purely arbitrary, and there is a rational relation between the two facts, and the accused is not deprived of a proper opportunity to submit all the facts bearing upon the issue, it has been held that such statutes do not violate the requirements of due process of law. Adams v. New York, 192 U.S. 585 , 48 L. ed. 575, 24 Sup. Ct. Rep. 372; Mobile, J. & K. C. R. Co. v. Turnipseed, decided by this court December 19, 1910 [ 219 U.S. 35 , 55 L. ed. --, 31 Sup. Ct. Rep. 136].... The latest expression upon this point is found in the case last cited, where the court, by Mr. Justice Lurton, said: 'That a legislative presumption of one fact from evidence of another may not constitute a denial of due process of law, or a denial of the equal protection of the law, it is only essential that there shall be some rational connection between the fact proved and the ultimate fact [219 U.S. 219, 239] presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate. So, also, it must not, under guise of regulating the presentation of evidence, operate to preclude the party from the right to present his defense to the main fact thus presumed. If a legislative provision not unreasonable in itself, prescribing a rule of evidence, in either criminal or civil cases, does not shut out from the party affected a reasonable opportunity to submit to the jury in his defense all of the facts bearing upon the issue, there is no ground for holding that due process of law has been denied him.' " (238)
"The words involuntary servitude have a 'larger meaning than slavery.'
'It was very well understood that, in the form of apprenticeship for long terms, as it had been practiced in the West India Islands, on the abolition of slavery by the English government, or by reducing the slaves to the condition of serfs attached to the plantation, the purpose of the article might have been evaded, if only the word 'slavery' had been used.' Slaughter-House Cases, 16 Wall. p. 69, 21 L. ed. 406. The plain intention was to abolish slavery of whatever name and form and all its badges and incidents; to render impossible any state of bondage; to make labor free, by prohibiting that control by which the personal service of one man is disposed of or coerced for another's benefit, which is the essence of involuntary servitude." (241)
"Peonage is a term descriptive of a condition which has existed in Spanish America, and especially in Mexico. The essence of the thing is compulsory service in payment of a debt. A peon is one who is compelled to work for his creditor until his debt is paid. And in this explicit and comprehensive enactment, Congress was not concerned with mere names or manner of description, or with a particular place or section of the country. It was concerned with a fact, wherever it might exist; with a condition, however named and wherever it might be established, maintained, or enforced." (242)
"Peonage is sometimes classified as voluntary or involuntary, but this implies simply a difference in the mode of origin, but none in the character of the servitude. The one exists where the debtor voluntarily contracts to enter the service of his creditor. The other is forced upon the debtor by some provision of law. But peonage, however created, is compulsory service, involuntary servitude. The peon can release himself therefrom, it is true, by the payment of the debt, but otherwise the service is enforced." (243)
"The act of Congress, nullifying all state laws by which it should be attempted to enforce the 'service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise,' necessarily embraces all legislation which seeks to compel the service or labor by making it a crime to refuse or fail to perform it. Such laws would furnish the readiest means of compulsion. The 13th [219 U.S. 219, 244] Amendment prohibits involuntary servitude except as punishment for crime. But the exception, allowing full latitude for the enforcement of penal laws, does not destroy the prohibition. It does not permit slavery or involuntary servitude to be established or maintained through the operation of the criminal law by making it a crime to refuse to submit to the one or to render the service which would constitute the other. The state may impose involuntary servitude as a punishment for crime, but it may not compel one man to labor for another in payment of a debt, by punishing him as a criminal if he does not perform the service or pay the debt." (243-44)
"What the state may not do directly it may not do indirectly. If it cannot punish the servant as a criminal for the mere failure or refusal to serve without paying his debt, it is not permitted to accomplish the same result by creating a statutory presumption which, upon proof of no other fact, exposes him to conviction and punishment. Without imputing any actual motive to oppress, we must consider the natural operation of the statute here in question (Henderson v. New York [Henderson v. Wickham] 92 U. S. p. 268, 23 L. ed. 547), and it is apparent that it furnishes a convenient instrument for the coercion [219 U.S. 219, 245] which the Constitution and the act of Congress forbid; an instrument of compulsion peculiarly effective as against the poor and the ignorant, its most likely victims. There is no more important concern than to safeguard the freedom of labor upon which alone can enduring prosperity be based. The provision designed to secure it would soon become a barren form if it were possible to establish a statutory presumption of this sort, and to hold over the heads of laborers the threat of punishment for crime, under the name of fraud, but merely upon evidence of failure to work out their debts. The act of Congress deprives of effect all legislative measures of any state through which, directly or indirectly, the prohibited thing, to wit, compulsory service to secure the payment of a debt, may be established or maintained; and we conclude that 4730, as amended, of the Code of Alabama, in so far as it makes the refusal or failure to perform the act or service, without refunding the money or paying for the property prima facie evidence of the commission received of the crime which the section defines, is in conflict with the 13th Amendment, and the legislation authorized by that Amendment, and is therefore invalid." (244)
9. Jones v. Mayer Co. 392 U.S. 409 (1968): Racial discrimination case. Case brought under Civil Rights Act of 1866, reenacted in 1870. Racial discrimination ruled to be a badge of slavery. Much to say about legislative history of the 13th amendment and the Act itself. Many good quotes. Cites from the case:
"We hold that 1982 [42 U.S.C. 1982] bars all racial discrimination, private as well as public, in the sale or rental of property, and that the statute, thus construed, is a valid exercise of the power of Congress to enforce the Thirteenth Amendment." (413)
"In this setting, it would have been strange indeed if Congress had viewed its task as encompassing merely the nullification of racist laws in the former rebel States. That the Congress which assembled in the Nation's capital in December 1865 in fact had a broader vision of the task before it became clear early in the session, when three proposals to invalidate discriminatory state statutes were rejected as "too narrowly conceived." 46 From the outset it seemed clear, at least to Senator Trumbull of Illinois, Chairman of the Judiciary Committee, that stronger legislation might prove necessary. After Senator Wilson of Massachusetts had introduced his bill to strike down all racially discriminatory laws in the South, 47 Senator Trumbull said this:
‘I reported from the Judiciary Committee the second section of the [Thirteenth Amendment] for the very purpose of conferring upon Congress authority to see that the first section was carried out [392 U.S. 409, 430] in good faith . . . and I hold that under that second section Congress will have the authority, when the constitutional amendment is adopted, not only to pass the bill of the Senator from Massachusetts, but a bill that will be much more efficient to protect the freedman in his rights. . . . And, sir, when the constitutional amendment shall have been adopted, if the information from the South be that the men whose liberties are secured by it are deprived of the privilege to go and come when they please, to buy and sell when they please, to make contracts and enforce contracts, I give notice that, if no one else does, I shall introduce a bill and urge its passage through Congress that will secure to those men every one of these rights: they would not be freemen without them. It is idle to say that a man is free who cannot go and come at pleasure, who cannot buy and sell, who cannot enforce his rights. . . . [So] when the constitutional amendment is adopted I trust we may pass a bill, if the action of the people in the southern States should make it necessary, that will be much more sweeping and efficient than the bill under consideration.'
"Five days later, on December 18, 1865, the Secretary of State officially certified the ratification of the Thirteenth Amendment. The next day Senator Trumbull again rose to speak. He had decided, he said, that the "more sweeping and efficient" bill of which he had spoken previously ought to be enacted
‘at an early day for the purpose of quieting apprehensions in the minds of many friends of freedom lest by local legislation or a prevailing public sentiment in some of the States persons of the African race should continue to be oppressed and in fact deprived of their freedom . . . .' 49
"On January 5, 1866, Senator Trumbull introduced the bill he had in mind - the bill which later became the Civil Rights Act of 1866. 50 He described its objectives in terms that belie any attempt to read it narrowly:
‘Mr. President, I regard the bill to which the attention of the Senate is now called as the most important measure that has been under its consideration since the adoption of the constitutional amendment abolishing slavery. That amendment declared that all persons in the United States should be free. This measure is intended to give effect to that declaration and secure to all persons within the United States practical freedom. There is very little importance in the general declaration of abstract truths and principles unless they can be carried into effect, unless the persons who are to be [392 U.S. 409, 432] affected by them have some means of availing themselves of their benefits.'"(429-30)
"But, like the Senate, the House was moved by a larger objective - that of giving real content to the freedom guaranteed by the Thirteenth Amendment. Representative Thayer of Pennsylvania put it this way:
‘[W]hen I voted for the amendment to abolish slavery . . . I did not suppose that I was offering [392 U.S. 409, 434] . . . a mere paper guarantee. And when I voted for the second section of the amendment, I felt . . . certain that I had . . . given to Congress ability to protect . . . the rights which the first section gave . . . .'
‘The bill which now engages the attention of the House has for its object to carry out and guaranty the reality of that great measure. It is to give to it practical effect and force. It is to prevent that great measure from remaining a dead letter upon the constitutional page of this country. . . . The events of the last four years . . . have changed [a] large class of people . . . from a condition of slavery to that of freedom. The practical question now to be decided is whether they shall be in fact freemen. It is whether they shall have the benefit of this great charter of liberty given to them by the American people.'" (433-34)
"the Attorney General of the United States said at the oral argument of this case, ‘The fact that the statute lay partially dormant for many years cannot be held to diminish its force today.'"(437)
"Senator Trumbull of Illinois, the Chairman of the Judiciary Committee, had brought the Thirteenth Amendment to the floor of the Senate in 1864. In defending the constitutionality of the 1866 Act, he argued that, if the narrower construction of the Enabling Clause were correct, then
‘the trumpet of freedom that we have been blowing throughout the land has given an `uncertain sound,' and the promised freedom is a delusion. Such was not the intention of Congress, which proposed the constitutional amendment, nor is such the fair meaning of the amendment itself. . . . I have no doubt that under this provision . . . we may destroy all these discriminations in civil rights against the black man; and if we cannot, our constitutional amendment amounts to nothing. It was for that purpose that the second clause of that amendment was adopted, which says that Congress shall have authority, by appropriate legislation, to carry into effect the article prohibiting slavery. Who is to decide what that appropriate legislation is to be? The Congress of the United States; and it is for Congress to adopt such appropriate legislation as it may think proper, so that it be a means to accomplish the end.'" (440)
"Negro citizens, North and South, who saw in the Thirteenth Amendment a promise of freedom - freedom to ‘go and come at pleasure' 79 and to ‘buy and sell when they please' 80 - would be left with "a mere paper guarantee" 81 if Congress were powerless to assure that a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man. At the very least, the freedom that Congress is empowered to secure under the Thirteenth Amendment includes the freedom to buy whatever a white man can buy, the right to live wherever a white man can live. If Congress cannot say that being a free man means at least this much, then the Thirteenth Amendment made a promise the Nation cannot keep.
"Representative Wilson of Iowa was the floor manager in the House for the Civil Rights Act of 1866. In urging that Congress had ample authority to pass the pending bill, he recalled the celebrated words of Chief Justice Marshall in McCulloch v. Maryland, 4 Wheat. 316, 421:
‘Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.'
‘The end is legitimate,' the Congressman said, ‘because it is defined by the Constitution itself. The end is the [392 U.S. 409, 444] maintenance of freedom . . . . A man who enjoys the civil rights mentioned in this bill cannot be reduced to slavery. . . . This settles the appropriateness of this measure, and that settles its constitutionality.'
We agree. The judgment is Reversed." (443-44)
Justice Douglas, Concurring
"Enabling a Negro to buy and sell real and personal property is a removal of one of many badges of slavery.
‘Slaves were not considered men. . . . They could own nothing; they could make no contracts; they could hold no property, nor traffic in property; they could not hire out; they could not legally marry nor constitute families; they could not control their children; they could not appeal from their master; they could be punished at will.' W. Dubois, Black Reconstruction in America 10 (1964).1" [392 U.S. 409, 445]
"The true curse of slavery is not what it did to the black man, but what it has done to the white man. For the existence of the institution produced the notion that the white man was of superior character, intelligence, and morality. The blacks were little more than livestock - to be fed and fattened for the economic benefits they could bestow through their labors, and to be subjected to authority, often with cruelty, to make clear who was master and who slave." (444-45)
"That brief sampling of discriminatory practices, many of which continue today, stands almost as an annotation to what Frederick Douglass (1817-1895) wrote nearly a century earlier:
‘Of all the races and varieties of men which have suffered from this feeling, the colored people of this country have endured most. They can resort to no disguises which will enable them to escape its deadly aim. They carry in front the evidence which marks them for persecution. They stand at the extreme point of difference from the Caucasian race, and their African origin can be instantly recognized, though they may be several removes from the typical African race. They may remonstrate like Shylock - `Hath not a Jew eyes? hath not a Jew hands, organs, dimensions, senses, affections, passions? fed with the same food, hurt with the same weapons, subject to the same diseases, healed by the same means, warmed and cooled by the same summer and winter, as a Christian is?' - but such eloquence is unavailing. They are Negroes - and that is enough, in the eye of this unreasoning prejudice, to justify indignity and violence. In nearly every department of American life they are confronted by this insidious influence. It fills the air. It meets them at the workshop and factory, when they apply for work. It meets them at the church, at the hotel, at the [392 U.S. 409, 447] ballot-box, and worst of all, it meets them in the jury-box. Without crime or offense against law or gospel, the colored man is the Jean Valjean of American society. He has escaped from the galleys, and hence all presumptions are against him. The workshop denies him work, and the inn denies him shelter; the ballot-box a fair vote, and the jury-box a fair trial. He has ceased to be the slave of an individual, but has in some sense become the slave of society. He may not now be bought and sold like a beast in the market, but he is the trammeled victim of a prejudice, well calculated to repress his manly ambition, paralyze his energies, and make him a dejected and spiritless man, if not a sullen enemy to society, fit to prey upon life and property and to make trouble generally.'" (446-47)
10. U.S. v. Reynolds 235 U.S. 133 (1914): Peonage case. Alabama law held unconstitutional. Cites from the case:
"Under this statute, the surety may cause the arrest of the convict for violation of his labor contract. He may be sentenced and punished for this new offense, and undertake to liquidate the penalty by a new contract of a similar nature, and, if again broken, may be again prosecuted, and the convict is thus kept chained to an ever- [235 U.S. 133, 147] turning wheel of servitude to discharge the obligation which he has incurred to his surety, who has entered into an undertaking with the state, or paid money in his behalf. The rearrest of which we have spoken is not because of his failure to pay his fine and costs originally assessed against him by the state. He is arrested at the instance of the surety, and because the law punishes the violation of the contract which the convict has made with him." (146-47)
11. McLamore v. S.C. 409 U.S. 934 (1972): Chain gang is constitutional.
12. Taylor v. Ga. 315 U.S. 409 U.S. 25 (1942): Peonage case. Georgia law held unconstitutional. Cites from the case:
"The necessary consequence is that one who has received an advance on a contract for services which he is unable to repay is bound by the threat of penal sanction to remain at his employment until the debt has been discharged. Such coerced labor is peonage. And it is no less so because a presumed initial fraud rather than a subsequent breach of the employment contract is the asserted target of the statute. It is of course clear that peonage is a form of involuntary servitude within the meaning of the Thirteenth Amendment and that the Act of 1867 is an 'appropriate' implementation of that Amendment." (29)
13. U.S. v. Beach 324 U.S. 193 (1945): Prostitution case in District of Colombia. No bearing on the 13th Amendment.
14. U.S. v. Harris 106 U.S. 629 (1883): 14th amendment operates upon state laws so that Constitutional rights can be enforced against tyrannical acts of state legislatures; it does not have any force over private matters. Cites from the case:
"Proper respect for a co-ordinate branch of the government requires the courts of the United States to give effect to the presumption that congress will pass no act not within its constitutional power. This presumption should prevail unless the lack of constitutional authority to pass an act in question is clearly demonstrated. While conceding this, it must, nevertheless, be stated that the government of the United States is one of delegated, limited, and enumerated powers. Martin [106 U.S. 629, 636] v. Hunter, 1 Wheat. 304; McCulloch v. State, 4 Wheat. 316; Gibbons v. Ogden, 9 Wheat. 1. Therefore every valid act of congress must find in the constitution some warrant for its passage." (635-36)
"The purpose and effect of the two sections of the fourteenth amendment above quoted were clearly defined by Mr. Justice BRADLEY in the case of U. S. v. Cruikshank, 1 Woods, 316, as follows:
'It is a guaranty of protection against the acts of the state government itself. It is a guaranty against the exertion of arbitrary and tyrannical power on the part of the government and legislature of the state, not a guaranty against the commission of individual offenses; and the power of congress, whether express or implied, to legislate for the enforcement of such a guaranty, does not extend to the passage of laws for the suppression of crime within the states. The enforcement of the guaranty does not require or authorize congress to perform 'the duty that the guaranty itself supposes it to be the duty of the state to perform, and which it requires the state to perform.'
When the case of U. S. v. Cruikshank came to this court the same view was taken here. The chief justice, delivering the opinion of the court in that case, said:
'The fourteenth amendment prohibits a state from depriving any person of life, liberty, or property without due process of law, or from denying to any person the equal protection of the laws; but this provision does not add anything to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the states upon the fundamental rights which belong to every citizen as a [106 U.S. 629, 639] member of society. The duty of protecting all its citizens in the enjoyment of an equality of rights was originally assumed by the states, and it remains there. The only obligation resting upon the United States is to see that the states do not deny the right. This the amendment guaranties, and no more. The power of the national government is limited to this guaranty.'" (638-39)
15. Wong Wing v. U S, 163 U.S. 228 (1896): Held unconstitutional to impose involuntary servitude without first being convicted of a crime. Involuntary servitude imposed upon illegal immigrant as a punishment before being deported. Good quotes. Cites from the case:
"On the other hand, it is contended on behalf of the government that it has never been decided by this court that in all cases where the punishment may be confinement at hard labor the crime is infamous; and many cases are cited from the reports of the state supreme courts where the constitutionality of statutes providing for summary proceedings, without a jury trial, for the punishment by imprisonment at hard labor of vagrants and disorderly persons, had been upheld. These courts have held that the constitutional guaranties refer to such crimes and misdemeanors as have, by the regular course of the law, and the established modes of procedure, been the subject of trial by jury, and that they do not embrace every species of accusation involving penal consequences. It is urged that the offense of being and remaining unlawfully within the limits of the United States by an alien is a political offense, and is not within the common-law cases triable only by a jury, and that the constitution does not apply to such a case." (234)
"But when congress sees fit to further promote such a policy by subjecting the persons of such aliens to infamous punishment at hard labor, or by confiscating their property, we think such legislation, to be valid, must provide for a judicial trial to establish the guilt of the accused.....No limits can be put by the courts upon the power of congress to protect, by summary methods, the country from the advent of aliens whose race or habits render them undesirable as citizens, or to expel such if they have already found their way into our land, and unlawfully remain therein. But to declare unlawful residence within the country to be an infamous crime, punishable by deprivation of liberty and property, would be to pass out of the sphere of constitutional legislation, unless provision were made that the fact of guilt should first be established by a judicial trial. It is not consistent with the theory of our government that the legislature should, after having defined an offense as an infamous crime, find the fact of guilt, and adjudge the punishment by one of its own agents....In Ex parte Wilson, 114 U.S. 428 , 5 Sup. Ct. 935, this court declared that, for more than a century, imprisonment at hard labor in the state prison or penitentiary or other similar institution has been considered an infamous punishment in England and America, and that imprisonment at hard labor, compulsory and unpaid, is, in the strongest sense of the words, 'involuntary servitude for crime,' spoken of in the provision of the ordinance of 1787, and of the thirteenth amendment of the constitution, by which all other slavery was abolished, and which declares [163 U.S. 228, 238] that such slavery or involuntary servitude shall not exist within the United States or any place subject to their jurisdiction, except as a punishment for crime whereof the party shall have been duly convicted." (237)
16. Ex Parte State of Va. 100 U.S. 339 (1879): Habeas Corpus case. State judge denied negroes the right to sit on juries and was arrested under federal law. Writ was denied. Judge ruled to have overstepped his authority by violating the 13th & 14th amendments. Cites from the case:
"We have said the prohibitions of the Fourteenth Amendment are addressed to the States. They are, 'No State shall make or enforce a law which shall abridge the privileges or immunities of citizens of the United States, . . . nor deny to any person within its jurisdiction the equal protection of the laws.' They have reference to actions of the political body denominated a State, by whatever instruments or in whatever [100 U.S. 339, 347] modes that action may be taken. A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning. Then the State has clothed one of its agents with power to annul or to evade it.
"But the constitutional amendment was ordained for a purpose. It was to secure equal rights to all persons, and, to insure to all persons the enjoyment of such rights, power was given to Congress to enforce its provisions by appropriate legislation. Such legislation must act upon persons, not upon the abstract thing denominated a State, but upon the persons who are the agents of the State in the denial of the rights which were intended to be secured. Such is the act of March 1, 1875, and we think it was fully authorized by the Constitution." (346-47)
"We do not perceive how holding an office under a State, and claiming to act for the State, can relieve the holder from obligation to obey the Constitution of the United States, or take away the power of Congress to punish his disobedience...It was insisted during the argument on behalf of the petitioner that Congress cannot punish a State judge for his official acts; and it was assumed that Judge Cole, in selecting the jury as he did, was performing a judicial act. This assumption cannot be admitted. Whether the act done by him was judicial or not is to be determined by its character, and not by the character of the agent." (348)
17. Toibb v. Radloff 501 U.S. 157 (1991): Bankruptcy case. Wages garnished for the benefit of creditors means that the worker is compelled to toil for the creditors, thus violating the 13thamendment. Cites from the case:
"We find these concerns overstated in light of the Code's provisions for dealing with recalcitrant Chapter 11 debtors. If an involuntary Chapter 11 debtor fails to cooperate, this likely will provide the requisite "cause" for the bankruptcy court to convert the Chapter 11 case to one under Chapter 7. See 1112(b). In any event, the argument overlooks Congress' primary concern about a debtor's being forced into bankruptcy under Chapter 13: that such a debtor, whose future wages are not exempt from the bankruptcy estate, [501 U.S. 157, 166] 1322(a)(1), would be compelled to toil for the benefit of creditors in violation of the Thirteenth Amendment's involuntary servitude prohibition." (165-66)
18. Corrigan v. Buckley 271 U.S. 323 (1926): Negro denied the right to purchase property on account of race. Case dismissed for want of jurisdiction.
19. In Re: Slaughterhouse Cases 83 U.S. 36 (1872): Monopoly case. 5-4 decision upholding Louisiana law that created the monopoly. Case came before the court again in 1884 (111 U.S. 746) and the monopoly was finally held unconstitutional. 13th amendment is applicable to all people, not just the negro race. Cites from the case:
[NOTE: The quotes below are from the arguments made against the Louisiana Act that created the monopoly.]
"Quoting further from Turgot, De Tocqueville, Buckle, Dalloz, Leiber, Sir G. C. Lewis, and others, the counsel gave a vivid and very interesting account of the condition and grievances of the lower orders in various countries of Europe, especially in France, with its banalites and 'seigneurs justiciers,' during those days when 'the prying eye of the government followed the butcher to the shambles and the baker to the oven;' when 'the peasant could not cross a river without paying to some nobleman a toll, nor take the produce which he raised to market until he had bought leave to do so; nor consume what remained of his grain till he had sent it to the lord's mill to be ground, nor full his cloths on his own works, nor sharpen his tools at his own grindstone, nor make wine, oil, or cider at his own press;' the days of monopolies; monopolies which followed men in their daily avocations, troubled them with its meddling spirit, and worst of all diminished their responsibility to themselves." (45)
"Now, the act of the Louisiana legislature was in the face of all these principles; it made it unlawful for men to use their own land for their own purposes; made it unlawful to any except the seventeen of this company to exercise a lawful and necessary business for which others were as competent as they, for which at least one thousand persons in the three parishes named had qualified themselves, had framed their arrangements in life, had invested their property, and had founded all their hopes of success on earth. The act was a pure MONOPOLY; as such against common right, and void at the common law of England. And it was equally void by our own law." 48)
"The thirteenth amendment prohibits 'slavery and involuntary servitude.' The expressions are ancient ones, and were familiar even before the time when they appeared in the great Ordinance of 1787, for the government of our vast Northwestern Territory; a territory from which great States were to arise. In that ordinance that are associated with enactments affording comprehensive protection for life, liberty, and property; for the spread of religion, morality, and knowledge; for maintaining the inviolability of contracts, the freedom of navigation upon the public rivers, and the unrestrained conveyance of property by contract and devise, and for equality of children in the inheritance of patrimonial estates. The ordinance became a law after Great Britain, in form the most popular government in Europe, had been expelled from that territory because of 'injuries and usurpations having in direct object the establishment of an absolute tyranny over the States.' Feudalism at that time prevailed in nearly all the kingdoms of Europe, and serfdom and servitude and feudal service depressed their people to the level of slaves. The prohibition of 'slavery and involuntary servitude' in every form and degree, except as a [83 U.S. 36, 50] sentence upon a conviction for crime, comprises much more than the abolition or prohibition of African slavery. Slavery in the annals of the world had been the ultimate solution of controversies between the creditor and debtor; the conqueror and his captive; the father and his child; the state and an offender against its laws. The laws might enslave a man to the soil. The whole of Europe in 1787 was crowded with persons who were held as vassals to their landlord, and serfs on his dominions. The American constitution for that great territory was framed to abolish slavery and involuntary servitude in all forms, and in all degrees in which they have existed among men, except as a punishment for crime duly proved and adjudged.Now, the act of which we complain has made of three parishes of Louisiana 'enthralled ground.'..... 'The seventeen' have astricted not only the inhabitants of those parishes, but of all other portions of the earth who may have cattle or animals for sale or for food, to land them at the wharves of that company (if brought to that territory), to keep them in their pens, yards, or stables, and to prepare them for market in their abattoir or slaughter-house. Lest some competitor may present more tempting or convenient arrangements, the act directs that all of these shall be closed on a particular day, and prohibits any one from having, keeping, or establishing any other; and a peremptory command is given that all animals shall be sheltered, preserved, and protected by this corporation, and by none other, under heavy penalties....Is not this 'a servitude?' Might it not be so considered in a strict sense? It is like the 'thirlage' of the old Scotch law and the banalites of seignioral France; which were servitudes undoubtedly. But, if not strictly a servitude, it is certainly a servitude in a more popular sense, and, being an enforced one, it is an involuntary servitude. Men are surely subjected to a servitude when, throughout three parishes, embracing 1200 square miles, every man and every woman in them is compelled to refrain from the use of their own land and exercise of their own industry and the improvement [83 U.S. 36, 51] of their own property, in a way confessedly lawful and necessary in itself, and made unlawful and unnecessary only because, at their cost, an exclusive privilege is granted to seventeen other persons to improve and exercise it for them. We have here the 'servients' and the 'dominants' and the 'thraldom' of the old seignioral system. The servients in this case are all the inhabitants in any manner using animals brought to the markets for sale or for slaughter. The dominants are 'the seventeen' made into a corporation, with these seignioral rights and privileges. The masters are these seventeen, who alone can admit or refuse other members to their corporation. The abused persons are the community, who are deprived of what was a common right and bound under a thraldom." (49-51)
"The only question then is this: 'When a State passes a law depriving a thousand people, who have acquired valuable property, and who, through its instrumentality, are engaged in an honest and necessary business, which they understand, of their right to use such their own property, and to labor in such their honest and necessary business, and gives a monopoly, embracing the whole subject, including the right to labor in such business, to seventeen other persons-whether the State has abridged any of the privileges or immunities of these thousand persons?'" (55)
By an act of legislative partiality it enriches seventeen persons and deprives nearly a thousand others of the same class, and as upright and competent as the seventeen, of the means by which they earn their daily bread." (57)
"The right to labor, the right to one's self physically and intellectually, and to the product of one's own faculties, is past doubt property, and property of a sacred kind. Yet this property is destroyed by the act; destroyed not by due process of law, but by charter; a grant of privilege, of monopoly; which allows such rights in this matter to no one but to a favored 'seventeen.'" (57)
[NOTE: Below are quotes from the opinion of the court]
"The institution of African slavery, as it existed in about half the States of the Union, and the contests pervading the public mind for many years, between those who desired its curtailment and ultimate extinction and those who desired additional safeguards for its security and perpetuation, culminated in the effort, on the part of most of the States in which slavery existed, to separate from the Federal government, and to resist its authority. This constituted the war of the rebellion, and whatever auxiliary causes may have contributed to bring about this war, undoubtedly the overshadowing and efficient cause was African slavery." (68)
"We do not say that no one else but the negro can share in this protection. Both the language and spirit of these articles are to have their fair and just weight in any question of construction. Undoubtedly while negro slavery alone was in the mind of the Congress which proposed the thirteenth 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." (73)
20. U.S. v. Patrillo 332 U.S. 1 (1947): No bearing. 13th amendment challenge was frivolous.
21. Civil Rights Cases 109 U.S. 3 (1883): Discrimination case. Congressional act making it illegal to discriminate because of race held to be unconstitutional. Harlan gave good dissenting opinion. Cites from the case:
"It is true that slavery cannot exist without law any more than property in lands and goods can exist without law, and therefore the thirteenth 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; and upon this assumption it is claimed that this is sufficient authority for declaring by law that all persons shall have equal accommodations and privileges in all inns, public conveyances, and places of public amusement; the argument being that the denial of such equal accommodations and privileges is in itself a subjection to a species of servitude within the meaning of the amendment. Conceding the major proposition to be true, that [109 U.S. 3, 21] congress has a right to enact all necessary and proper laws for the obliteration and prevention of slavery, with all its badges and incidents, is the minor proposition also true, that the denial to any person of admission to the accommodations and privileges of an inn, a public conveyance, or a theater, does subject that person to any form of servitude, or tend to fasten upon him any badge of slavery? If it does not, then power to pass the law is not found in the thirteenth amendment....In a very able and learned presentation of the cognate question as to the extent of the rights, privileges, and immunities of citizens which cannot rightfully be abridged by state laws under the fourteenth amendment, made in a former case, a long list of burdens and disabilities of a servile character, incident to feudal vasslage in France, and which were abolished by the decrees of the national assembly, was presented for the purpose of showing that all inequalities and observances exacted by one man from another, were servitudes or badges of slavery, which a great nation, in its effort to establish universal liberty, made haste to wipe out and destroy. But these were servitudes imposed by the old law, or by long custom which had the force of law, and exacted by one man from another without the latter's consent. Should any such servitudes be imposed by a state law, there can be no doubt that the law would be repugnant to the fourteenth, no less than to the thirteenth, amendment; nor any greater doubt that congress has adequate power to forbid any such servitude from being exacted." (21-22)
"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." (22)
Harlan, dissenting
"At every step in this direction the nation has been confronted with class tyranny, which a contemporary English historian says is, of all tyrannies, the most intolerable, 'for it is ubiquitous in its operation, and weighs, perhaps, most heavily on those whose obscurity or distance would withdraw them from the notice of a single despot.' To-day it is the colored race which is denied, by corporations and individuals wielding public authority, rights fundamental in their freedom and citizenship. At some future time it may be some other race that will fall under the ban. If the constitutional amendments be enforced, according to the intent with which, as I conceive, they were adopted, there cannot be, in this republic, any class of human beings in practical subjection to another class, with power in the latter to dole out to the former just such privileges as they may choose to grant." (62)
22. Dist. Of Colombia v. Carter 409 U.S. 88 (1973): Wrong federal statute used to sue police officer employed in Dist. Of Colombia. Section 1982, of the Civil Rights Act of 1866, Act of Apr. 9, 1866, 14 Stat. 27 should have been used instead of 42 U.S.C. 1983. Cites from the case:
"42 U.S.C. 1983, which provides:
‘Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.'"(419)
"Section 1982, which first entered our jurisprudence as 1 of the Civil Rights Act of 1866, Act of Apr. 9, 1866, 14 Stat. 27, provides:
‘All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.'
"This provision was enacted as a means to enforce the Thirteenth Amendment's proclamation that ‘[n]either slavery nor involuntary servitude . . . shall exist within the United States, or any place subject to their jurisdiction.' See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 437 -438 (1968). ‘As its text reveals, the Thirteenth [409 U.S. 418, 422] Amendment `is not a mere prohibition of State laws establishing or upholding slavery, but an absolute declaration that slavery or involuntary servitude shall not exist in any part of the United States.' Civil Rights Cases, 109 U.S. 3, 20 (1883); see Griffin v. Breckenridge, 403 U.S. 88, 105 (1971); Jones v. Alfred H. Mayer Co., supra, at 437-440; Clyatt v. United States, 197 U.S. 207, 216 , 218 (1905). Thus, it cannot be doubted that the power vested in Congress to enforce this Amendment includes the power to enact laws of nationwide application." (421-22)
"The situation is wholly different, however, with respect to 1983. Unlike 1982, which derives from the Civil Rights Act of 1866, 1983 has its roots in 1 of the Ku Klux Klan Act of 1871, Act of Apr. 20, 1871, 1, 17 Stat. 13. This distinction has great significance, for unlike the 1866 Act, which was passed as a means to enforce the Thirteenth Amendment, the primary purpose of the 1871 Act was ‘to enforce the Provisions of the Fourteenth Amendment.'" (423)
23. Griffin v. Breckenridge 403 U.S. 88 (1971): Negroes from Mississippi were stopped on the road and beaten severely. District and Circuit courts rulings were reversed. Right of negroes to sue under federal law upheld. Cites from the case:
"Our cases have firmly established that the right of interstate travel is constitutionally protected, does not necessarily rest on the Fourteenth Amendment, and is assertable against private as well as governmental interference. Shapiro v. Thompson, 394 U.S. 618, 629 -631; id., at 642-644 (concurring opinion); United States [403 U.S. 88, 106] v. Guest, 383 U.S. 745, 757 -760 and n. 17; Twining v. New Jersey, 211 U.S. 78, 97 ; Slaughter-House Cases, 16 Wall. 36, 79-80; Crandall v. Nevada, 6 Wall. 35, 44, 48-49; Passenger Cases, 7 How. 283, 492 (Taney, C.J., dissenting). The ‘right to pass freely from State to State' has been explicitly recognized as ‘among the rights and privileges of National citizenship.' Twining v. New Jersey, supra, at 97. That right, like other rights of national citizenship, is within the power of Congress to protect by appropriate legislation." (105-6)
24. Plessy v. Ferguson 163 U.S. 573 (1896): Mulatto man criminally charged in Louisiana for sitting in seat on train that was for white people only. State law upheld as constitutional. Court ruled 13th amendment not violated. "Slavery implies involuntary servitude,-a state of bondage; the ownership of mankind as a chattel, or, at least, the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property, and services."(542)
25. Blyew v. U.S. 80 U.S. 581 (1871): Negroes murdered by white men. Civil Rights Act of April 9, 1866 invoked to bring case into federal circuit court because negro witnesses could not testify against white persons according to Kentucky law. Court held that Circuit Court did not have criminal jurisdiction over the murder trial because negroes could not be witnesses. Jurisdiction belonged to the state court. [Note: perhaps the witnesses who were denied their right to testify should have invoked the 1866 act to seek mandamus against the state court to compel the state court to give them their right to testify.] Cites from the case:
"In this age no man can be called free who is denied the right to make contracts, sue and be sued, and to give evidence in the courts. No man is really free who is not protected, by law, from injury. So long as he is denied the right to testify against those who violate his person or his property he has no protection, and is denied the power to defend his own freedom....The condition of things in Kentucky under its law excluding the evidence of blacks where white persons have committed crime is disgraceful to a Christian community. A band of whites shall set upon and murder half a congregation of blacks, their minister included, and though a hundred blacks who saw the massacre survive, and can identify the murderers, conviction is impossible. The wisdom and appropriateness of the legislation of Congress, as shown by the act now in question, cannot be better illustrated than by the facts of this case. At night, in their own humble cabin, an unoffending and defenseless old colored man, his infirm mother more than ninety years of age, his wife, and son, are murdered in a most shocking manner by two brutal white men, actuated by no other motive than that of avowed hostility to the black race. The son lingers long enough to tell the facts of this horrible transaction, and a little sister, twelve or thirteen years of age, survives the cruel wounds inflicted upon her at the same time. The dying declarations of the one and the parol testimony of the other in court, taken in connection with circumstantial evidence produced at the trial, establish the guilt of the accused beyond all reasonable doubt. And yet under the law of the State the accused cannot be punished, because in Kentucky black men cannot give evidence of the crimes of white ones." (589)
"We cannot be expected to be ignorant of the condition of things which existed when the statute was enacted, or of the evils which it was intended to remedy. It is well known that in many of the States, laws existed which subjected colored men convicted of criminal offences to punishments different from and often severer than those which were inflicted upon white persons convicted of similar offences. The modes of trial were also different, and the right of trial by jury was sometimes denied them. It is also well known that in many quarters prejudices existed against the colored race, which naturally affected the administration of justice in the State courts, and operated harshly when one of the race was a party accused. These were evils doubtless which the act of Congress had in view, and which it intended to remove. And so far as it reaches, it extends to both races the same rights, and the same means of vindicating them....In view of these considerations we are of opinion that the case now before us is not within the provisions of the act of April 9th, 1866, and that the Circuit Court had not jurisdiction of the crime of murder committed in the district of Kentucky, merely because two persons who witnessed the murder were citizens of the African race, and for that reason incompetent by the law of Kentucky to testify in the courts of that State. They are not persons affected by the cause." (593)
26. Hurd v. Hodge 334 U.S. 24 (1948): Covenant that denied sale of real estate to negroes held to be unconstitutional.
27. McDonald v. Santa Fe Trail Transportation Co. 427 U.S. 273 (1976): Title VII of the Civil Rights Act of 1964, which prohibits the discharge of "any individual" because of "such individual's race," and of 42 U.S.C. 1981, which provides that "[a]ll persons . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens . . . ." Racial discrimination case brought by white workers. Court ruled that Civil Rights Act of 1866 applies to all persons. Cites from the case:
"The statute provides in full:
‘All persons within the jurisdiction 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 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.'
"Cong. Globe 1367. Section 1 of the bill, as it then stood, and as it was ultimately enacted, provided in relevant part:
‘[A]ll persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color . . . shall have the same right, in every State and Territory in the United States, to make and enforce contracts . . . as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.' 14 Stat. 27.
"Title 42 U.S.C. 1981 provides in pertinent part:
‘All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . ." 15 We have previously held, where discrimination against Negroes was in question, that 1981 affords a federal remedy against discrimination in private employment on the basis of race, and respondents do not contend otherwise. Johnson v. Railway Express Agency, 421 U.S. 454, 459 -460 (1975). See also Runyon v. McCrary, ante, at 168; Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). The question here is [427 U.S. 273, 286] whether 1981 prohibits racial discrimination in private employment against whites as well as nonwhites.
"While neither of the courts below elaborated its reasons for not applying 1981 to racial discrimination against white persons, respondents suggest two lines of argument to support that judgment. First, they argue that by operation of the phrase "as is enjoyed by white citizens," 1981 unambiguously limits itself to the protection of nonwhite persons against racial discrimination. Second, they contend that such a reading is consistent with the legislative history of the provision, which derives its operative language from 1 of the Civil Rights Act of 1866, Act of Apr. 9, 1866, c. 31, 1, 14 Stat. 27. See Runyon v. McCrary, ante, at 168-170, n. 8; Tillman v. Wheaton-Haven Recreation Assn., 410 U.S. 431, 439 (1973). The 1866 statute, they assert, was concerned predominantly with assuring specified civil rights to the former Negro slaves freed by virtue of the Thirteenth Amendment, and not at all with protecting the corresponding civil rights of white persons.
"We find neither argument persuasive. Rather, our examination of the language and history of 1981 convinces [427 U.S. 273, 287] us that 1981 is applicable to racial discrimination in private employment against white persons." (285-87)
"The bill ultimately enacted as the Civil Rights Act of 1866 was introduced by Senator Trumbull of Illinois as a "bill . . . to protect all persons in the United States in their civil rights . . ." (emphasis added), and was initially described by him as applying to "every race and color." Cong. Globe, 39th Cong., 1st Sess., 211 (1866) (hereinafter Cong. Globe). Consistent with the views of its draftsman, 17 and the prevailing view in the Congress as to the reach of its powers under the enforcement section [427 U.S. 273, 288] of the Thirteenth Amendment, 18 the terms of the bill prohibited any racial discrimination in the making and enforcement of contracts against whites as well as nonwhites. Its first section provided:
‘[T]here shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery; but the inhabitants of every race and color, without regard to any previous condition of slavery or involuntary servitude, . . . shall have the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.'" Id., at 211. 19 (287- 88)
"The point was most directly focused on in the closing debate in the Senate. [427 U.S. 273, 290] During that debate, in response to the argument of Senator Davis of Kentucky that by providing for the punishment of racial discrimination in its enforcement section, 2, the bill extended to Negroes a protection never afforded whites, Senator Trumbull said:
‘Sir, this bill applies to white men as well as black men. It declares that all persons in the United States shall be entitled to the same civil rights, the right to the fruit of their own labor, the right to make contracts, the right to buy and sell, and enjoy liberty and happiness; and that is abominable and iniquitous and unconstitutional! Could anything be more monstrous or more abominable than for a member of the Senate to rise in his place and denounce with such epithets as these a bill, the only object of which is to secure equal rights to all the citizens of the country, a bill that protects a white man just as much as a black man? With what consistency and with what face can a Senator in his place here say to the Senate and the country that this is a bill for the benefit of black men exclusively when there is no such distinction in it, and when the very object of the bill is to break down all discrimination between black men and white men?' Id., at 599.
"So advised, the Senate passed the bill shortly thereafter. Id., at 606-607." (272-73)
28. U.A.W.. v. Wisconsin Employment Relations Board 336 U.S. 245 (1949): Wisconsin law empowering Employment Relations Board to prohibit unlawful strike activity held to be constitutional. The right to quit working for an employer negates involuntary servitude arguments. Cites from the case:
"The Union contends that the statute as thus applied violates the Thirteenth Amendment in that it imposes a form of compulsory service or involuntary servitude. However, nothing in the statute or the order makes it a crime to abandon work individually, compare Pollock v. Williams, 322 U.S. 4 , or collectively. Nor does either undertake to prohibit or restrict any employee from leaving the service of the employer, either for reason or without reason, either with or without notice. The facts afford no foundation for the contention that any action of the State has the purpose or effect of imposing any form of involuntary servitude." (251)
"As to the right to strike, however, this Court, quoting the language of 13, has said, 306 U.S. 240, 256 , 496, 123 A.L.R. 599, 'But this recognition of 'the right to strike' plainly contemplates a lawful strike-the exercise of the unquestioned right to quit work', and it did not operate to legalize the sit-down strike, which state law made illegal and state authorities punished." (259)
"We find no basis for denying to Wisconsin the power, in governing her internal affairs to regulate a course of conduct neither made a right under federal law nor a violation of it and which has the coercive effect obvious in this device." (265)
29. U.S. v. Choctaw Nation 193 U.S. 115 (1905): Negroes who were former slaves to the Indians not entitled to lands granted by treaty.
30. Memphis v. Greene 451 U.S. 100 (1981): Street closing challenged against City of Memphis to be a badge of slavery. The court ruled that the argument was without merit.
31. Atlanta Motel v. U.S. 379 U.S. 241 (1964): Forcing motel owners to rent rooms to negroes does not impose involuntary servitude.
32. Ex Parte Wilson 114 U.S. 417 (1885): Counterfeiting criminal case. Imprisonment at hard labor without pay is involuntary servitude in the strongest sense. Writ of Habeas Corpus granted because no grand jury indictment was issued before criminal charges were brought. "Imprisonment at hard labor, compulsory and unpaid, is, in the strongest sense of the words, 'involuntary servitude for crime,' spoken of in the provision of the ordinance of 1787, and of the thirteenth amendment of the constitution, by which all other slavery was abolished." (429)
33. Fitzpatrick v. Bitzer 427 U.S. 445 (1976): Sex discrimination case. No bearing on 13thamendment.
34. Holmes v. U.S. 391 U.S. 936 (1968): Jehovah's Witness refused to obey military draft laws. Cert was denied but good dissenting opinion by Douglas explaining the history and development of the draft system. Court has never passed on the constitutionality of a peacetime draft. Cites from the case:
"The Act of 1863 was never directly attacked in this Court, and thus no opportunity to weigh the significance of the absence of a declaration of war (see the Prize Cases, 2 Black 635) arose. Many years later this Court twice suggested in dicta that the Act of 1863 was valid, but the absence of a declaration of war was not considered. 5 This dicta would have particularly little weight [391 U.S. 936 , 942] in view of the fact that what the 1863 Act created was not a true 'draft' as we understand that term today." (941-42)
"During the Spanish American War no draft provision was enacted- Congress merely called for a volunteer army. Apart from certain laws reorganizing the national militia, it was not until the Selective Draft Act of 1917 that Congress provided for conscription into the Regular Army." (942)
"This Court has not reached the merits of the question which I have been discussing since the Prize Cases, 2 Black 635, decided in 1863. Even though Lincoln was putting down an insurrection within the country, the Court was divided five-to-four, Mr. Chief Justice Taney stated in 1777 in a letter to John Adams: 'Our people, even under the monarchial government, had learned to consider it [the draft] as the last of all oppressions.' Jeffersonian Cyclopedia 263 (1900).Chief Justice Taney said of the congressional power 'to raise and support armies': '[T]he words themselves, even if they stood alone, will not, according to their known and established use and meaning in the English language, justify this construction [permitting conscription].
'During the period when the United States were English Colonies, the Army of England,-the standing army,-was always raised by voluntary enlistments,-and the right to coerce all the able bodied subjects of the Crown into the ranks of the Army and subject them to military law, was not claimed or exercised by the English Government-and when the power to raise and support armies was delegated to Congress [by the States], the words of the grant necessarily implied that they were to be raised in the usual manner.-And the general government has always heretofore so understood them and has uniformly by its own officers recruited the ranks of its 'land forces' by voluntary enlistments for a specified period.' Taney, Thoughts on the Conscription Law of the U. States-Rough Draft Requiring Revision, in Auchampaugh, ed., A Great Justice On State and Federal Power, 18 Tyler's Quarterly Historical & Genealogical Magazine, 72, 81 (1936). See also Kneedler v. Lane, 45 Pa.St. 238, 254-255 (opinion of Woodward, J .); Black, the Selective Draft Cases-A Judicial Milepost on the Road to Absolutism, 11 B.U.L.Rev. 37 (1931). [391 U.S. 936 , 947] and Justices Catron, Clifford, and Nelson9 voting that the President alone had no power to place an embargo under which a British ship was seized while in Hampton Roads." (946-47)
"Another professor has recently pointed out the serious deleterious effects in the country stemming from the Court's failure to decide whether the President may constitutionally wage a foreign war in Vietnam without a declaration of war by Congress. Hughes, Civil Disobedience and the Political Question Doctrine, 43 N.Y.U.L.Rev. 1 ( 1968). In these type of cases, he says, 'to deny certiorari, to dismiss suits without [391 U.S. 936 , 949] a reasoned opinion has a tendency to arouse suspicion that the Court is shrinking from making pronouncements about the basic norms of the [ constitutional] system.' Id., at 18. If an executive war is unconstitutional, he says, but the Court refuses to invalidate it, then the President's 'conduct strengthens the moral case for disobeying executive orders which stem from his departure from constitutional demands.' Id., at 19....As I said, the question whether there can be conscription when there has not been a declaration of war, has never been decided by this Court. It is an important question. It is a recurring question. It is coming to us in various forms in many cases as a result of the conflict in Vietnam. I think we owe to those who are being marched off to jail for maintaining that a declaration of war is essential for conscription an answer to this important undecided constitutional question.
"I would therefore grant certiorari in this case." (948-49)
35. Cleveland v. U.S. 329 U.S. 14 (1946): Polygamy case. No bearing on 13th amendment.
36. Kepner v. U.S. 195 U.S. 100 (1904): Double jeopardy case. No bearing on 13th amendment.
37. Aguilar v. Standard Oil Co. Of N.J. 318 U.S. 724 (1943): Seaman entitled to damages and wages if injured while on shore leave.
38. TEXAS & N. O. R. CO. v. BROTHERHOOD OF RY. & S. S. CLERKS, 281 U.S. 548 (1930): Railroad Company ordered not to interfere with employees forming and organizing a labor association.
39. Stanley v. Schwalby 147 U.S. 508 (1893): Action of trespass to try title. No bearing on 13thamendment.
40. U.S. v. Classic 313 U.S. 299 (1941): Election fraud. No bearing on 13th amendment.
41. U.S. v. Moreland 258 U.S. 433 (1922): Man sentenced after jury conviction to 6 months hard labor at a workhouse for not supporting his minor children. Crime deemed to be infamous and conviction was reversed because he was not first indicted by a grand jury. Cites from the case:
"Some further comment becomes necessary. An attempt is made to modify the case or to remove it as authority for that at bar. The means and pains taken to accomplish it are somewhat baffling to representation. We have cited the case for the proposition that imprisonment with the accompaniment of hard labor is an infamous punishment, made so by the accompaniment of hard labor, and declared illegal because not upon presentment or indictment by a grand jury." (438)
"We have dwelt on this matter at length because we think more is involved than the power to deport aliens, or [258 U.S. 433, 441] to punish them for illegal entry into the country-more than to deliver one from punishment who has defied the orders of a court, that enjoined upon him the manifest duty of supporting his minor children. It concerns the recognition and enforcement of a provision of the Constitution of the United States expressing and securing an important right. And the right, at times, must be accorded one whose conduct tempts to a straining of the law against him." (440-41)
"The contention is untenable. It is what sentence can be imposed under the law, not what was imposed, that is the material consideration. When an accused is in danger of an infamous punishment, if convicted, he has a right to insist that he be not put upon trial, except on the accusation of a grand jury. Ex parte Wilson and Mackin v. United States, supra." (441)
"Whether a crime is infamous, within the meaning of the Fifth Amendment, may be determined by the character of the punishment or by other incidents of the sentence prescribed. Ex parte Wilson, 114 U.S. 417, 426 , 5 S. Sup. Ct. 935. In the Wong Wing Case the commitment was to an institution which was named the Detroit House of Correction, but served also as a state prison or penitentiary. 2 Imprisonment [258 U.S. 433, 443] in a state penitentiary is an infamous punishment whether it be with or without hard labor. In re Claasen, 140 U.S. 200, 205 , 11 S. Sup. Ct. 735. Moreover, the commitment in the Wong Wing Case was not under sentence of a court or after conviction by a jury. It was by direction of a commissioner of the United States. The punishment by imprisonment was thus imposed under an executive order, and, hence, was clearly void under the Constitution, whatever its character or incidents, its duration or the place of confinement." (442-43)
"Hard labor was not considered an essential element of the penitentiary punishment; and experience proved that it was in fact an alleviation. The most severe punishment inflicted was solitary confinement without labor." (449)
42. Flood v. Kuhn 407 U.S. 258 (1972): Baseball player traded without his consent and not allowed to be a free agent. Claim of 13th amendment violation denied because their was no compulsory service involved. Cites from the case:
"A. Federal Baseball Club v. National League, 259 U.S. 200 (1922), was a suit for treble damages instituted by a member of the Federal League (Baltimore) against the National and American Leagues and others. The plaintiff obtained a verdict in the trial court, but the Court of Appeals reversed. The main brief filed by the plaintiff with this Court discloses that it was strenuously argued, among other things, that the business in which the defendants were engaged was interstate commerce; that the interstate relationship among the several clubs, located as they were in different States, was predominant; that organized baseball represented an investment of colossal wealth; that it was an engagement in moneymaking; that gate receipts were divided by agreement between the home club and the visiting club; and that the business of baseball was to be distinguished from the mere playing of the game as a sport for physical exercise and diversion. See also 259 U.S., at 201 -206.
"Mr. Justice Holmes, in speaking succinctly for a unanimous Court, said:
‘The business is giving exhibitions of base ball, which are purely state affairs. . . . But the fact that in order to give the exhibitions the Leagues must induce free persons to cross state lines and [407 U.S. 258, 270] must arrange and pay for their doing so is not enough to change the character of the business. . . . [T]he transport is a mere incident, not the essential thing. That to which it is incident, the exhibition, although made for money would not be called trade or commerce in the commonly accepted use of those words. As it is put by the defendants, personal effort, not related to production, is not a subject of commerce. That which in its consummation is not commerce does not become commerce among the States because the transportation that we have mentioned takes place. To repeat the illustrations given by the Court below, a firm of lawyers sending out a member to argue a case, or the Chautauqua lecture bureau sending out lecturers, does not engage in such commerce because the lawyer or lecturer goes to another State.'" (269-70)
43. Meachum v. Fano 427 U.S. 215 (1976): Prisoner transfer case. No bearing on 13thamendment.
44. Lynch v. Household Finance Corp. 405 U.S. 538 (1972): Garnishment case. State statute allowed creditors lawyers to garnish bank accounts without seeking the consent of the garnishee. Civil Rights Act of 1866 & 1871 invoked against state statute. 14th amendment claim upheld. District & Circuit Court ruling were reversed. Cites from the case:
"The broad concept of civil rights embodied in the 1866 Act and in the Fourteenth Amendment is unmistakably evident in the legislative history of 1 of the Civil Rights Act of 1871, 17 Stat. 13, the direct lineal ancestor of 1983 and 1343 (3). Not only was 1 of the 1871 Act derived from 2 of the 1866 Act, 9 but the 1871 Act was passed for the express purpose of "enforc[ing] the Provisions of the Fourteenth Amendment." 17 Stat. 13. And the rights that Congress sought to protect in the Act of 1871 were described by the chairman of the House Select Committee that drafted the legislation as "the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety." Cong. Globe, 42d Cong., 1st Sess., App. 69 (1871) (Rep. Shellabarger, quoting from Corfield v. Coryell, 6 F. Cas. 546, 551-552 (No. 3230) (CCED Pa.)). [405 U.S. 538, 546] That the protection of property as well as personal rights was intended is also confirmed by President Grant's message to Congress urging passage of the legislation, 10 and by the remarks of many members of Congress during the legislative debates." (545-46)
"Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a "personal" right, whether the "property" in question be a welfare check, a home, or a savings account. In fact, a fundamental interdependence exists between the personal right to liberty and the personal right in property. Neither could have meaning without the other. That rights in property are basic civil rights has long been recognized. J. Locke, Of Civil Government 82-85 (1924); J. Adams, A Defence of the Constitutions of Government of the United States of America, in F. Coker, Democracy, Liberty, and Property 121-132 (1942); 1 W. Blackstone, Commentaries *138-140. Congress recognized these rights in 1871 when it enacted the predecessor of 1983 and 1343 (3). We do no more than reaffirm the judgment of Congress today." (552)
"In Connecticut, garnishment is instituted without judicial order. Ibid.; 1 E. Stephenson, Connecticut Civil Procedure 151 (2d ed. 1970). 24 The levy of garnishment - usually effected by a deputy sheriff - does not confer jurisdiction on state courts and may, in fact, [405 U.S. 538, 554] occur prior to commencement of an alleged creditor's suit. Young v. Margiotta, 136 Conn. 429, 433, 71 A. 2d 924, 926. Despite the state court's control over the plaintiff's docketed case, garnishment is "distinct from and independent of that action." Potter v. Appleby, 136. Conn. 641, 643, 73 A. 2d 819, 820. The garnished property is secured, not under authority of the court, but merely in the hands of the garnishee. Conn. Gen. Stat. Rev. 52-329. Prejudgment garnishment is thus levied and maintained without the participation of the state courts." (553-54)
"The President, in a message dated March 23, 1871, stated:
‘A condition of affairs now exists in some States of the Union rendering life and property insecure . . . . I urgently recommend such legislation as in the judgment of Congress shall effectually secure life, liberty, and property, and the enforcement of law in all parts of the United States.' Cong. Globe, 42d Cong., 1st Sess., 244." (548)
[Footnote 21 ] "The District Court found that access to funds held in a savings account was indistinguishable from simple ownership of money. Thus garnishment of that account did not infringe personal rights. Mrs. Lynch, however, alleged that because of the garnishment she was unable to pay her rent on time and encountered difficulty maintaining her family on a minimally adequate diet. If these allegations are true, Mrs. Lynch's personal liberty could be profoundly affected by garnishment of her savings." (554)
45. Bedford Cut Stone Co. V. Journeyman Stone Cutter's Assoc. Of North 274 U.S. 37 (1927): Anti-trust case involving illegal strike. Justice Sutherland stated: "Where the means adopted are unlawful, the innocent general character of the organizations adopting them or the lawfulness of the ultimate end sought to be attained, cannot serve as a justification." How true this is today when it comes to exploiting the labor of millions of people. Cites from the case:
"From the foregoing review, it is manifest that the acts and conduct of respondents fall within the terms of the Anti-Trust Act; and petitioners are entitled to relief by injunction under section 16 of the Clayton Act, c. 323, 38 Stat. 730, 737 (Comp. St. 8835o), by which they are authorized to sue for such relief 'against threatened loss or damage by a violation of the anti-trust laws,' etc. The strikes, ordered and carried out with the sole object of preventing the use and installation of petitioners' product in other states, necessarily threatened to destroy or narrow petitioners' interstate trade by taking from them their customers. That the organizations, in general purpose and in and of themselves, were lawful, and that the ultimate result aimed at may not have been illegal in itself, are beside the point. Where the means adopted are unlawful, the innocent general character of the organizations adopting them or the lawfulness of the ultimate end sought to be attained, cannot serve as a justification." (55)
46. Jett v. Dallas Ind. School Dist. 491 U.S. 701 (1989): Racial discrimination case. Excellent historical account of how the acts of congress that enforce the 13th and 14th amendments came into being. Penal clause allows criminal charges to be filed against state officers who use state law to infringe on constitutional rights. Cites from the case:
"Second, the 41st Congress reenacted the substance of the 1866 Act in a Fourteenth Amendment statute, the Enforcement Act of 1870. 16 Stat. 144. Section 16 of the 1870 Act was modeled after 1 of the 1866 Act. Section 17 reenacted with some modification the criminal provisions of 2 of the earlier civil rights law, and 18 of the 1870 Act provided that the entire 1866 Act was reenacted. See Civil Rights Cases, 109 U.S. 3, 16 -17 (1883). We have thus recognized that present day 42 U.S.C. 1981 is both a Thirteenth and a Fourteenth Amendment statute." (701)
"On December 18, 1865, the Secretary of State certified that the Thirteenth Amendment had been ratified and become part of the Constitution. Less than three weeks later, [491 U.S. 701, 714] Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee, introduced S. 61, which was to become the Civil Rights Act of 1866. See Cong. Globe, 39th Cong., 1st Sess., 129 (1866). The bill had eight sections as introduced, the first three of which are relevant to our inquiry here. Section 1, as introduced to the Senate by Trumbull, provided:
‘That there shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery; but the inhabitants of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall have the same right to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to the full and equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.' Id., at 474.
"On January 29, 1866, Senator Trumbull took the floor to describe S. 61 to his colleagues. Trumbull indicated that "the first section will amount to nothing more than the declaration in the Constitution itself unless we have the machinery to carry it into effect." Id., at 475. The Senator then alluded to the second section of the bill which provided:
‘That any person who under color of any law, statute, ordinance, regulation, or custom shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, . . . [491 U.S. 701, 715] or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding $1,000, or imprisonment not exceeding one year, or both, in the discretion of the court.' Ibid.
"Senator Trumbull told the Senate: ‘This is the valuable section of the bill so far as protecting the rights of freedmen is concerned.' Ibid. This section would allow for criminal prosecution of those who denied the freedman the rights protected by 1, and Trumbull felt, in retrospect somewhat naively, that, ‘it will only be necessary to go into the late slave-holding States and subject to fine and imprisonment one or two in a State, and the most prominent ones I should hope at that, to break up this whole business.' Ibid.
"Trumbull then described the third section of the bill, which, as later enacted, provided in pertinent part:
‘That the district courts of the United States, within their respective districts, shall have, exclusively of the courts of the several States, cognizance of all crimes and offenses committed against the provisions of this act, and also, concurrently with the circuit courts of the United States, of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the State or locality where they may be any of the rights secured to them by the first section of this act; and if any suit or prosecution, civil or criminal, has been or shall be commenced in any State court, against any such person, for any cause whatsoever . . . such defendant shall have the right to remove such cause for trial to the proper district or circuit court in the manner prescribed by the `Act relating to habeas corpus and regulating judicial proceedings in certain cases,' approved March three, eighteen hundred and sixty three, and all acts amendatory thereof.' 14 Stat. 27. [491 U.S. 701, 716]
"Trumbull described this section as ‘giving to the courts of the United States jurisdiction over all persons committing offenses against the provisions of this act, and also over the cases of persons who are discriminated against by State laws or customs.' Cong. Globe, 39th Cong., 1st Sess., 475 (1866). Much of the debate in both the Senate and the House over the 1866 Act was taken up with the meaning of the terms ‘civil rights or immunities' contained in the first sentence of 1 of the bill as introduced in the Senate. The phrase remained in the bill throughout the Senate's consideration of S. 61, but was stricken by amendment in the House shortly before that body passed the bill.
"Discussion of 2 of the bill focused on both the propriety and constitutionality of subjecting state officers to criminal punishment for effectuating discriminatory state laws. Opponents of the bill consistently referred to criminal punishment and fines being levied against state judges and other state officers for the enforcement of state laws in conflict with 1. See id., at 475, 499, 500 (Sen. Cowan); id., at 598 (Sen. Davis); id., at 1121 (Rep. Rogers); id., at 1154 (Rep. Eldridge). They never inti