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or some provision in the constitution or laws of a commonwealth, should declare that all free men shall have the right to vote, then the secondary effect of the execution of the thirteenth amendment would be to confer suffrage. On the other hand, the social incidents of involuntary servitude cannot be regarded as legally abolished by this provision, either directly or indirectly. They may gradually die out in consequence of the abolition of the civil incidents, but this process is one which must accomplish itself outside of the realm of law and in the domain of social disposition. It is indeed conceivable that law may be so expanded as to dominate the whole intercourse of society; but this provision of the constitution does not authorize the legislature of the United States so to expand the laws of the United States in regard to this subject, and we trust that the legislatures of the commonwealths will not enter upon any such tyrannic course. In the Civil Rights Cases above cited, the Supreme Court of the United States, the ultimate interpreter of the constitution in our system in regard to private rights, plainly declares that the thirteenth amendment has not abolished what may be termed the social incidents of slavery. These cases decide that acts of discrimination made by innkeepers, theatremanagers, and carriers of passengers, as regards the accommodations furnished by them to different individuals, do not impose upon the persons, against whom such discriminations may be made, any incident of slavery or involuntary servitude within the meaning of the provision of the constitution abolishing slavery and involuntary servitude; and that the act of Congress of March 1, 1875, which undertook to secure to "all persons within the jurisdiction of the United States the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances on land or water, theatres and other places of public amusements, subject only to the conditions and limitations established by law and applicable alike to citizens of every race and color,

regardless of any previous condition of servitude," 1 is not warranted by the constitution, and is, therefore, null and void. Of course, then, all relations more distinctly social than these mentioned stand still more completely, if possible, outside of the pale of the legal operation of this constitutional provision.

The Civil Rights Act of April 9, 1866, indicates, I think, correctly the incidents of involuntary servitude, which this thirteenth article of the amendments to the constitution abolishes. They are inequality of rights in the making and enforcing of contracts; in suing; in being parties and giving evidence in a suit; in inheriting, purchasing, leasing, selling, holding, and conveying real and personal property; in the benefit of all laws and proceedings for the security of person and property, as enjoyed by white citizens; and, finally, the suffering of more grievous pains, penalties, and punishments than those inflicted upon white persons for the same offenses. The Supreme Court evidently approves of this view. It is undoubtedly the true view.


Two avenues of approach to this immunity, as thus defined, are still open to the commonwealths; two means of infringing upon the same still exist, which may be easily abused by the commonwealths. The first is the law of apprenticeship, which, in our system of federal government, is a subject that comes under the control of the commonwealths. The general incidents of apprenticeship are, that only a minor may be apprenticed; that the apprenticeship shall not run beyond the date of the attainment of majority; that the consent of the father, mother or guardian of the minor shall be given to the apprenticeship; that the minor shall enter voluntarily into the same or, if the minor be a pauper, that the officers of the poor

1 United States Statutes at Large, vol. 18, part 3, sec. I, p. 336.

2 Civil Rights Cases, 109 U. S. Reports, 3.

8 United States Statutes at Large, vol. 14, p. 27.

109 U. S. Reports, 22.

shall execute the indenture at their own discretion for the minor; that the apprenticeship shall be made by way of an unassignable indenture; and that the master shall be held to provide the apprentice with reasonable support, proper instruction and proper care in case of sickness.1 This law may, however, be modified at will by the legislature of each commonwealth in our system. It is easy to see how a species of slavery could thus be introduced under its cloak by the legislature of any commonwealth which might be so disposed. If, for example, the consent of the person to be bound should not be required, or if the indenture should be made generally assignable, or if no instruction should be made necessary, so that the apprentice should grow up in utter ignorance of his or her rights, there would certainly result an involuntary servitude. This question came to a practical test very soon after the passage of the Civil Rights Act. A law of Maryland, distinguishing between white and colored apprentices, by allowing the assignment of indentures of the latter to any one within the county and by making no provision for the education of colored apprentices, was reviewed by Chief Justice Chase in the case of Turner.2 The Chief Justice pronounced this law to be one creating an involuntary servitude, and declared it null and void, as contravening the thirteenth amendment to the constitution and the Civil Rights Act of the Congress made in accordance therewith.

The second means still in the hands of the commonwealths which may be so abused as to produce involuntary servitude is reserved in the constitutional provision itself. The plain inference to be drawn from the words "except as a punishment for crime whereof the party shall have been duly convicted" is that the commonwealths may still establish slavery and involuntary servitude as a punishment for crime, and that the individual suffering such punishment will not be accorded

1 Kent's Commentaries, vol. II, p. 262 ff.

2 United States Circuit Court Reports, 1 Abbott, 84.


the aid of the general government to deliver him from the Now, in our federal system of government, the legislatures of the commonwealths, unless prevented or limited by the constitutions of the commonwealths respectively, have plenary power to define crime and fix the penalties of crime. They may define petty offenses as grievous crime, and punish the same with life-servitude. According to the terms of this exception in the constitutional provision under consideration it is only necessary that the person shall have been duly convicted; i.e. shall have been convicted by due process of law. If that shall have been followed, the general government has no further power of intervention. The commonwealths may thus first fill their prisons with convicts sentenced with grievous punishments for the commission of petty offenses, and then deliver these convicts over to individuals to be held in involuntary personal servitude for years or for life, by assignable indentures, or in any other way they may determine. This is not mere speculation. Actual procedures in certain commonwealths have come very nearly up to what I have indicated as possibilities. The difficulty lies in regarding criminal law as local law. The administration of the criminal law should be local, but the fundamental principles of the law, the definitions, the punishments, and the fundamental rules of procedure in trial and conviction, should be national. They are, in their nature, national.

3. When the readmission to the Congress of the United States of members from the reconstructed commonwealths became desirable and necessary, the party which had secured the abolition of slavery was obliged to consider the possibility of its opponents regaining a majority in both houses of the Congress and also the presidency. As yet the constitution expressed the gain of the great civil war only in the two lines abolishing slavery and involuntary servitude. The Civil Rights Act of April 9th, 1866, might be abolished by the vote simply of a hostile majority in the Congress with the

consent of a hostile President. It appeared wise, therefore, to elaborate the principles of the thirteenth amendment a little further in the constitution itself, and give the newly emancipated the status of citizenship by the constitution. Two advantages would thus be gained. First, the Congress could not by legislation abolish the constitutional provisions; and, second, if the Congress should fail to enact the proper measures for executing them, they would be so nearly complete and self-executing that the judiciary might be able to apply them to each individual case. These were the reasons

which led to the adoption of the fourteenth amendment, so far, at least, as the question of individual or civil liberty is concerned. Subsequent events have shown the wisdom of the precaution, and have also demonstrated, in large degree, the shortsightedness of the wisest.

The first section of the fourteenth amendment contains all that there is upon the subject of civil liberty in the entire article. It defines, first, the qualifications of citizenship; second, it declares certain rights of citizenship; and third, it declares certain rights of persons. As the last concept is the wider, I will deal with it first.


First. The amendment ordains that no "State" (commonwealth) "shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." If any commonwealth should undertake to do any of these things, the injured individual may call the government of the United States to his defense by means of judicial decision and its execution. It is true that had Congress passed no laws to enforce this provision, (as it is empowered to do by the fifth section of the amendment,) there might be room for argument that the provision is only declaratory of the moral duty of the commonwealth,2 and if this view had prevailed the most

1 Constitution, Amendments, Art. XIV, sec. I.
2 Ex parte Virginia, 100 U. S. Reports, 339.

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