U.S. Supreme Court Hodges v. United States, 203 U.S. 1 (1906) Hodges v. United
States No. 14 of October Term.
1905 Submitted October 19,
1905 Restored to the docket for oral
argument November 6, 1905 Argued April 23, 1906 Decided May 28, 1906 Opinion withheld until dissent
filed, October 24, 1906 203 U.S.
1 ERROR TO THE DISTRICT COURT OF THE
UNITED STATES FOR THE EASTERN DISTRICT OF
ARKANSAS Syllabus The Fourteenth and Fifteenth Amendments operate solely on state
action, and not on individual action. Unless the Thirteenth
Amendment vests jurisdiction in the national government, the remedy
for wrongs committed by individuals on persons of African descent
is through state action and state tribunals, subject to supervision
of this Court by writ of error in proper cases.

															Notwithstanding the adoption of the Thirteenth, Fourteenth and
Fifteenth Amendments, the national government still remains one of
enumerated powers, and the Tenth Amendment is not shorn of its
vitality.

															Slavery and involuntary servitude as denounced by the Thirteenth
Amendment mean a condition of enforced compulsory service of one to
another, and while the cause inciting that amendment was the
emancipation of the colored race, it reaches every race and every
individual.

															The result of the Amendments to the Constitution adopted after
the Civil War was to abolish slavery, and to make the emancipated
slaves citizens, Page 203 U. S. 2 and not wards of the nation, over whom Congress retained
jurisdiction. This decision of the people is binding upon the
courts, and they cannot attempt to determine whether it was the
wiser course.

															The United States court has no jurisdiction under the Thirteenth
Amendment or §§ 1978, 1979, 5508, 5510, Revised Statutes, of a
charge of conspiracy made and carried out in a state to prevent
citizens of African descent, because of their race and color, from
making or carrying out contracts and agreements to labor.

															On October 8, 1903, the grand jury returned into the District
Court of the United States for the Eastern District of Arkansas an
indictment charging that the defendants (now plaintiffs in error),
with others,

															"did knowingly, willfully, and unlawfully conspire to oppress,
threaten, and intimidate Berry Winn, Dave Hinton, Percy Legg, Joe
Mardis, Joe McGill, Dan Shelton, jim Hall, and George Shelton,
citizens of the United States of African descent, in the free
exercise and enjoyment of rights and privileges secured to them and
each of them by the Constitution and laws of the United States, and
because of their having exercised the same, to-wit, the said Berry
Winn, Dave Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan Shelton,
Jim Hall, and George Shelton, being then and there persons of
African descent and citizens of the United States and of the State
of Arkansas, had then and there made and entered into contracts and
agreements with James A. Davis and James S. Hodges, persons then
and there doing business under the name of Davis & Hodges as
copartners, carrying on the business of manufacturers of lumber at
White Hall, in said county, the said contracts being for the
employment by said firm of the said Berry Winn, Dave Hinton, Percy
Legg, Joe Mardis, Joe McGill, Dan Shelton, Jim Hall, and George
Shelton as laborers and workmen in and about their said
manufacturing establishment, by which contracts the said Berry
Winn, Dave Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan Shelton,
Jim Hall, and George Shelton were, on their part, to perform labor
and services at Page 203 U. S. 3 said manufactory, and were to receive, on the other hand, for
their labor and services, compensation, the same being a right and
privilege conferred upon them by the Thirteenth Amendment to the
Constitution of the United States and the laws passed in pursuance
thereof, and being a right similar to that enjoyed in said state by
the white citizens thereof, and while the said Berry Winn, Dave
Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan Shelton, Jim Hall,
and George Shelton were in the enjoyment of said right and
privilege, the said defendants did knowingly, willfully, and
unlawfully conspire as aforesaid to injure, oppress, threaten, and
intimidate them in the free exercise and enjoyment of said right
and privilege, and because of their having so exercised the same,
and because they were citizens of African descent, enjoying said
right, by then and there notifying the said Berry Winn, Dave
Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan Shelton, Jim Hall,
and George Shelton that they must abandon said contracts and their
said work at said mill and cease to perform any further labor
thereat, or receive any further compensation for said labor, and by
threatening, in case they did not so abandon said work, to injure
them, and by thereafter then and there willfully and unlawfully
marching and moving in a body to and against the place of business
of the said firm while the said Berry Winn, Dave Hinton, Percy
Legg, Joe Mardis, Joe McGill, Dan Shelton, Jim Hall, and George
Shelton were engaged thereat, and while they were in the
performance of said contracts thereon, the said defendants being
then and there armed with deadly weapons, threatening and
intimidating the said workmen there employed, with the purpose of
compelling them, by violence and threats and otherwise, to remove
from said place of business, to stop said work, and to cease the
enjoyment of said right and privilege, and by then and there
willfully, deliberately, and unlawfully compelling said Berry Winn,
Dave Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan Shelton, Jim
Hall, and George Shelton to quit said work and Page 203 U. S. 4 abandon said place and cease the free enjoyment of all
advantages under said contracts, the same being so done by said
defendants and each of them for the purpose of driving the said
Berry Winn, Dave Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan
Shelton, Jim Hall, and George Shelton from said place of business
and from their labor because they were colored men and citizens of
African descent, contrary to the form of the statute in such case
made and provided, and against the peace and dignity of the United
States."

															A demurrer to this indictment, on the ground that the offense
created by §§ 1977 and 5508, Rev.Stat., under which it was found,
was not within the jurisdiction of the courts of the United States,
but was judicially cognizable by state tribunals only, was
overruled, a trial had, and the three plaintiffs in error found
guilty, sentenced separately to imprisonment for different terms
and to fine, and to be thereafter ineligible to any office of
profit or trust created by the Constitution or laws of the United
States. Sections 1977, 1978, 1979, 5508, and 5510 read as
follows:

															"SEC. 1977. 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."

															"SEC. 1978. 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."

															"SEC. 1979. 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 Page 203 U. S. 5 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."

															"SEC. 5508. If two or more persons conspire to injure, oppress,
threaten, or intimidate any citizen in the free exercise or
enjoyment of any right or privilege secured to him by the
Constitution or laws of the United States, or because of his having
so exercised the same; or if two or more persons go in disguise on
the highway, or on the premises of another, with intent to prevent
or hinder his free exercise or enjoyment of any right or privilege
so secured, they shall be fined not more than five thousand dollars
and imprisoned not more than ten years, and shall, moreover, be
thereafter ineligible to any office or place of honor, profit or
trust created by the Constitution or laws of the United
States."

															"SEC. 5510. Every person who, under color of any law, statute,
ordinance, regulation, or custom, subjects, or causes to be
subjected any inhabitant of any state or territory to the
deprivation of any rights, privileges, or immunities secured or
protected by the Constitution and laws of the United States, or to
different punishments, pains, or penalties, on account of such
inhabitant being an alien, or by reason of his color or race, than
are prescribed for the punishment of citizens, shall be punished by
a fine of not more than one thousand dollars, or by imprisonment
not more than one year, or by both."

															There being constitutional questions involved, the judgment was
brought directly to this Court on writ of error. Page 203 U. S. 14 MR. JUSTICE BREWER delivered the opinion of the Court.

															While the indictment was founded on sections 1977 and 5508, we
have quoted other sections to show the scope of the legislation of
Congress on the general question involved.

															That, prior to the three post-bellum amendments to the
Constitution, the national government had no jurisdiction over a
wrong like that charged in this indictment is conceded; that the
Fourteenth and Fifteenth Amendments do not justify the legislation
is also beyond dispute, for they, as repeatedly held, are
restrictions upon state action, and no action on the part of the
state is complained of. Unless, therefore, the Thirteenth Amendment
vests in the nation the jurisdiction claimed, the remedy must be
sought through Page 203 U. S. 15 state action and in state tribunals, subject to the supervision
of this Court by writ of error in proper cases.

															In the Slaughter-House
Cases , 16 Wall. 36, 83 U. S. 76 , in
defining the privileges and immunities of citizens of the several
states, this is quoted from the opinion of Mr. Justice Washington
in Corfield v. Coryell, 4 Wash. C.C. 371:

															"'The inquiry,' he says,"

															"is what are the privileges and immunities of citizens of the
several states? We feel no hesitation in confining these
expressions to those privileges and immunities which are
fundamental; which belong of right to the citizens of all free
governments, and which have at all times been enjoyed by citizens
of the several states which compose this Union, from the time of
their becoming free, independent, and sovereign. What these
fundamental principles are it would be more tedious than difficult
to enumerate. They may all, however, be comprehended under the
following general heads: protection by the government, with the
right to acquire and possess property of every kind, and to pursue
and obtain happiness and safety, subject, nevertheless, to such
restraints as the government may prescribe for the general good of
the whole."

															And, after referring to other cases, this Court added (p. 83 U. S. 77 ):

															"It would be the vainest show of learning to attempt to prove by
citations of authority that, up to the adoption of the recent
amendments, no claim or pretense was set up that those rights
depended on the federal government for their existence or
protection beyond the very few express limitations which the
federal Constitution imposed upon the states -- such, for instance,
as the prohibition against ex post facto laws, bills of
attainder, and laws impairing the obligation of contracts. But,
with the exception of these and a few other restrictions, the
entire domain of the privileges and immunities of citizens of the
states, as above defined, lay within the constitutional and
legislative power of the states, and without that of the federal
government. " Page 203 U. S. 16 Notwithstanding the adoption of these three amendments, the
national government still remains one of enumerated powers, and the
Tenth Amendment, which reads,

															"The powers not delegated to the United States by the
Constitution, nor prohibited by it to the states, are reserved to
the states respectively, or to the people,"

															is not shorn of its vitality. True, the Thirteenth Amendment
grants certain specified and additional power to Congress, but any
congressional legislation directed against individual action which
was not warranted before the Thirteenth Amendment must find
authority in it. And, in interpreting the scope of that Amendment,
it is well to bear in mind the words of Mr. Chief Justice Marshall,
in Gibbons v.
Ogden , 9 Wheat. 1, 22 U. S. 188 ,
which, though spoken more than four score years ago, are still the
rule of construction of constitutional provisions:

															"As men whose intentions require no concealment generally employ
the words which most directly and aptly express the ideas they
intend to convey, the enlightened patriots who framed our
Constitution, and the people who adopted it, must be understood to
have employed words in their natural sense, and to have intended
what they have said."

															The Thirteenth 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 declaration Page 203 U. S. 17 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: "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."

															A reference to the definitions in the dictionaries of words
whose meaning is so thoroughly understood by all seems an
affectation, yet in Webster slavery is defined as "the State of
entire subjection of one person to the will of another," and a
slave is said to be "a person who is held in bondage to another."
Even the secondary meaning given recognizes the fact of subjection,
as

															"one who has lost the power of resistance; one who surrenders
himself to any power whatever; as a slave to passion, to lust, to
strong drink, to ambition,"

															and servitude is by the same authority declared to be "the state
of voluntary or compulsory subjection to a master."

															It is said, however, that one of the disabilities of slavery,
one of the indicia of its existence, was a lack of power to make or
perform contracts, and that, when these defendants, by intimidation
and force, compelled the colored men named in the indictment to
desist from performing their contract, they, to that extent,
reduced those parties to a condition of slavery -- that is, of
subjection to the will of defendants -- and deprived them of a
freeman's power to perform his contract. But every wrong done to an
individual by another, acting singly or in concert with others,
operates pro tanto to abridge some of the freedom to which
the individual is entitled. A freeman has a right to be protected
in his person from an assault and battery. He is entitled to hold
his property safe from trespass Page 203 U. S. 18 or appropriation, but no mere personal assault or trespass or
appropriation operates to reduce the individual to a condition of
slavery. Indeed, this is conceded by counsel for the government,
for in their brief (after referring to certain decisions of this
Court), it is said:

															"With these decisions and many others that might be cited before
us, it is vain to contend that the federal Constitution secures to
a citizen of the United States the right to work at a given
occupation or particular calling free from injury, oppression, or
interference by individual citizens."

															"Even though such right be a natural or inalienable right, the
duty of protecting the citizen in the enjoyment of such right, free
from individual interference, rests alone with the state."

															"Unless, therefore, the additional element, to-wit, the
infliction of an injury upon one individual citizen by another
solely on account of his color, be sufficient ground to redress
such injury, the individual citizen suffering such injury must be
left for redress of his grievance to the state laws."

															The logic of this concession points irresistibly to the
contention that the Thirteenth Amendment operates only to protect
the African race. This is evident from the fact that nowhere in the
record does it appear that the parties charged to have been wronged
by the defendants had ever been themselves slaves, or were the
descendants of slaves. They took no more from the Amendment than
any other citizens of the United States. But if, as we have seen,
that denounces a condition possible for all races and all
individuals, then a like wrong perpetrated by white men upon a
Chinese, or by black men upon a white man, or by any men upon any
man on account of his race, would come within the jurisdiction of
Congress, and that protection of individual rights which, prior to
the Thirteenth Amendment, was unquestionably within the
jurisdiction solely of the states, would, by virtue of that
Amendment, be transferred to the nation, and subject to the
legislation of Congress. Page 203 U. S. 19 But that it was not the intent of the Amendment to denounce
every act done to an individual which was wrong if done to a free
man, and yet justified in a condition of slavery, and to give
authority to Congress to enforce such denunciation, consider the
legislation in respect to the Chinese. 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. By the Act of May 5, 1892, Congress required
all Chinese laborers within the limits of the United States to
apply for a certificate, and anyone who, after one year from the
passage of the act, should be found within the jurisdiction of the
United States without such certificate might be arrested and
deported. In Fong Yue Ting v. United States, 149 U.
S. 698 , the validity of the Chinese deportation act was
presented, elaborately argued, and fully considered by this Court.
While there was a division of opinion, yet at no time during the
progress of the litigation, and by no individual, counsel, or court
connected with it was it suggested that the requiring of such a
certificate was evidence of a condition of slavery, or prohibited
by the Thirteenth Amendment.

															One thing more: at the close of the Civil War, when the problem
of the emancipated slaves was before the nation, it might have left
them in a condition of alienage, or established them as wards of
the government, like the Indian tribes, and thus retained for the
nation jurisdiction over them, or it might, as it did, give them
citizenship. It chose the latter. By the Fourteenth Amendment, it
made citizens of all born within the limits of the United States
and subject to its jurisdiction. By the Fifteenth, it prohibited
any state from denying the right of suffrage on account of race,
color, or previous condition of servitude, and by the Thirteenth,
it forbade slavery or involuntary servitude anywhere within the
limits of the land. Whether this was or was not the wiser way to
deal with the great problem is not a matter for the courts to Page 203 U. S. 20 consider. It is for us to accept the decision, which declined to
constitute them wards of the nation or leave them in a condition of
alienage where they would be subject to the jurisdiction of
Congress, but gave them citizenship, doubtless believing that
thereby, in the long run, their best interests would be subserved,
they taking their chances with other citizens in the states where
they should make their homes.

															For these reasons, we think that the United States court had no
jurisdiction of the wrong charged in the indictment. The judgments
are reversed, and the case remanded with instructions to sustain
the demurrer to the indictment. The judgments are reversed, and the case remanded with
instructions to sustain the demurrer to the indictment. MR. JUSTICE BROWN concurs in the judgments.

															MR. JUSTICE HARLAN, with whom concurs MR. JUSTICE DAY,
dissenting. [ Footnote 1 ]

															The plaintiffs in error were indicted with eleven others in the
District Court of the United States, Eastern District of Arkansas
for the crime of having knowingly, willfully, and unlawfully
conspired to oppress, threaten, and intimidate Berry Winn, Dave
Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan Shelton, Jim Hall,
and George Shelton, persons of African descent and citizens of the
United States and of Arkansas, in the free exercise and enjoyment
of the right and privilege -- alleged to be secured to them
respectively by the Constitution and laws of the United States --
of disposing of their labor and services by contract and of
performing the terms of such contract without discrimination
against them because of their race or color, and without illegal
interference or by violent means. [ Footnote 2 ] Page 203 U. S. 21 The indictment was based primarily upon section 5508 of the
Revised Statutes, which provides:

															"SEC. 5508. If two or more persons conspire to injure, oppress,
threaten, or intimidate any citizen in the free exercise or
enjoyment of any right or privilege secured to him by the
Constitution or laws of the United States, or because of his having
so exercised the Page 203 U. S. 22 same; or if two or more persons go in disguise on the highway,
or on the premises of another, with intent to prevent or hinder his
free exercise or enjoyment of any right or privilege so secured,
they shall be fined not more than five thousand dollars, and
imprisoned not more than ten years, and shall, moreover, be
thereafter ineligible to any office or place of honor, profit, or
trust created by the Constitution or laws of the United
States."

															Other sections of the statutes relating to civil rights, and
referred to in the discussion at the bar, although not, perhaps,
vital to the decision of the present case, are as follows:

															"SEC. 1977. 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, and 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."

															"SEC. 1978. 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."

															"SEC. 1979. 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 Page 203 U. S. 23 and laws, shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress."

															"SEC. 5510. Every person who, under color of any law, statute,
ordinance, regulation, or custom, subjects, or causes to be
subjected, any inhabitant of any state or territory to the
deprivation of any rights, privileges, or immunities, secured or
protected by the Constitution and laws of the United States, or to
different punishments, pains, or penalties, on account of such
inhabitant being an alien, or by reason of his color or race, than
are prescribed for the punishment of citizens, shall be punished by
a fine of not more than one thousand dollars, or by imprisonment
not more than one year, or by both."

															A demurrer to the indictment was overruled, and the defendants
having pleaded not guilty, they were tried before a jury, and some
of them -- the present plaintiffs in error -- were convicted of the
crime charged, were each fined $100, and ordered to be imprisoned
for one year and a day. A motion for new trial having been denied,
they have brought the case to this Court.

															In our consideration of the questions now raise, it must be
taken, upon this record, as conclusively established by the verdict
and judgment --

															That certain persons -- the said Berry Winn and others above
named with him -- citizens of the United States, and of Arkansas,
and of African descent, entered into a contract whereby they agreed
to perform, for compensation, service and labor in and about the
manufacturing business in that State of a private individual;

															That those persons, in execution of their contract, entered upon
and were actually engaged in performing the work they agreed to do,
when the defendants -- the present plaintiffs in error -- knowingly
and willfully conspired to injure, oppress, threaten, and
intimidate such laborers, solely because of their having made that
contract, and because of their race and color, in the free
exercise of their right to dispose of their labor, and Page 203 U. S. 24 prevent them from carrying out their contract to render such
service and labor;

															That, in the prosecution of such conspiracy, the defendants, by
violent means, compelled those laborers, simply "because they
were colored men and citizens of African descent, " to quit
their work and abandon the place at which they were performing
labor in execution of their contract; and

															That, in consequence of those acts of the defendant
conspirators, the laborers referred to were hindered and prevented, solely because of their race and color, from enjoying the
right by contract to dispose of their labor upon such terms and to
such persons as to them seemed best.

															Was the right or privilege of these laborers thus to dispose of
their labor secured to them "by the Constitution or laws of the
United States?" If so, then this case is within the very letter of
section 5508 of the Revised Statutes, and the judgment should be
affirmed if that section be not unconstitutional.

															But I need not stop to discuss the constitutionality of section
5508. It is no longer open to question in this Court that Congress
may, by appropriate legislation, protect any right or privilege
arising from, created or secured by, or dependent upon, the
Constitution or laws of the United States. That is what that
section does. It purports to do nothing more. In Ex Parte
Yarbrough, 110 U. S. 651 , it
was distinctly adjudged that section 5508 was a valid exercise of
power by Congress. In Logan v. United States, 144 U.
S. 263 , 144 U. S. 286 , 144 U. S. 293 ,
this Court stated that the validity of section 5508 had been
sustained in the Yarbrough case, and, speaking by Mr.
Justice Gray, said:

															"In United States v. Reese, 92 U. S.
214 , 92 U. S. 217 , decided at
October term, 1875, this Court, speaking by Chief Justice Waite,
said:"

															"Rights and immunities created by or dependent upon the
Constitution of the United States can be protected by Congress. The
form and the manner of the protection may be such as Congress, in
the legitimate exercise of its legislative discretion, shall
provide. These may be varied to meet the necessities of the
particular right to be Page 203 U. S. 25 protected."

															After referring to prior adjudications, the Court in the Logan case also unanimously declared:

															"The whole scope and effect of this series of decisions is that,
while certain fundamental rights, recognized and declared, but not
granted or created, in some of the amendments to the Constitution
are thereby guaranteed only against violation or abridgment by the
United States or by the states, as the case may be, and cannot
therefore be affirmatively enforced by Congress against unlawful
acts of individuals, yet that every right created by,
arising under, or dependent upon the Constitution of the United
States may be protected and enforced by Congress, by such
means and in such manner as Congress, in the exercise of the
correlative duty of protection, or of the legislative powers
conferred upon it by the Constitution, may, in its discretion, deem
most eligible and best adapted to attain the object."

															In Motes v. United States, 178 U.
S. 458 , the language of the Court was:

															"We have seen that, by section 5508 of the Revised Statutes, it
is made an offense against the United States for two or more
persons to 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,
the punishment prescribed being a fine of not more than $5,000,
imprisonment not more than ten years, and ineligibility to any
office or place of honor, profit, or trust created by the
Constitution or laws of the United States. And by section 5509 it
is provided that if, in committing the above offense, any other
felony or misdemeanor be committed, the offender shall suffer such
punishment as is attached to such felony or misdemeanor by the laws
of the state in which the offense is committed. No question has
been made -- indeed, none could successfully be made -- as to the
constitutionality of these statutory provisions. Ex Parte
Yarbrough, 110 U. S. 651 ; United States
v. Waddell, 112 U. S. 76 . Referring to those
provisions and to the clause of the Constitution giving Congress
authority to pass all laws Page 203 U. S. 26 necessary and proper for carrying into execution the powers
specifically granted to it, and all other powers vested in the
government of the United States, . . . this Court has said:"

															"In the exercise of this general power of legislation, Congress
may use any means appearing to it most eligible and appropriate,
which are adapted to the end to be accomplished, and are consistent
with the letter and the spirit of the Constitution."

															" Logan v. United States, 144 U. S.
263 , 144 U. S. 283 ."

															In view of these decisions, it is unnecessary to examine the
grounds upon which the constitutionality of section 5508 rests, and
I may assume that the power of the national government, by
appropriate legislation, to protect a right created by, derived
from, or dependent in any degree upon, the Constitution of the
United States, cannot be disputed.

															I come now to the main question -- whether a conspiracy or
combination to forcibly prevent citizens of African descent, solely because of their race and color, from disposing of
their labor by contract upon such terms as they deem proper, and
from carrying out such contract, infringes or violates a right or
privilege created by, derived from, or dependent upon, the
Constitution of the United States.

															Before the Thirteenth Amendment was adopted, the existence of
freedom or slavery within any state depended wholly upon the
Constitution and laws of such state. However abhorent to many was
the thought that human beings of African descent were held as
slaves and chattels, no remedy for that state of things as it
existed in some of the states could be given by the United States
in virtue of any power it possessed prior to the adoption of the
Thirteenth Amendment. That condition, however, underwent a radical
change when that Amendment became a part of the supreme law of the
land, and, as such, binding upon all the states and all the people
as well as upon every branch of government, federal and state. By
the Amendment it was ordained that

															"neither slavery nor involuntary servitude, except as a
punishment for Page 203 U. S. 27 crime whereof the party shall have been duly convicted, shall
exist within the United States or any place subject to their
jurisdiction,"

															and "Congress shall have power to enforce this article by
appropriate legislation." Although in words and form prohibitive,
yet, in law, by its own force, that Amendment destroyed slavery and
all its incidents and badges, and established freedom. It also
conferred upon every person within the jurisdiction of the United
States (except those legally imprisoned for crime) the right,
without discrimination against them on account of their race, to
enjoy all the privileges that inhere in freedom. It went further,
however, and, by its second section, invested Congress with power,
by appropriate legislation, to enforce its provisions. To that end,
by direct, primary legislation, Congress may not only prevent the
reestablishing of the institution of slavery, pure and simple, but
may make it impossible that any of its incidents or badges should
exist or be enforced in any state or territory of the United
States. It therefore became competent for Congress, under the
Thirteenth Amendment, to make the establishing of slavery, as well
as all attempts, whether in the form of a conspiracy or otherwise,
to subject anyone to the badges or incidents of slavery offenses against the United States, punishable by fine or
imprisonment or both. And legislation of that character would
certainly be appropriate for the protection of whatever rights were
given or created by the Amendment. So legislation making it an
offense against the United States to conspire to injure or
intimidate a citizen in the free exercise of any right secured by
the Constitution is broad enough to embrace a conspiracy of the
kind charged in the present indictment. "A right or immunity,
whether created by the Constitution or only guaranteed by it, may
be protected by Congress." This Court so adjudged in Strauder
v. West Virginia, 100 U. S. 303 , 100 U. S. 310 ,
as it had previously adjudged in Prigg v.
Pennsylvania , 16 Pet. 539, and in United States
v. Reese, 92 U. S. 214 . The
colored laborers against whom the conspiracy in question was
directed Page 203 U. S. 28 owe their freedom as well as their exemption from the incidents
and badges of slavery alone to the Constitution of the United
States. Yet it is said that their right to enjoy freedom and to be
protected against the badges and incidents of slavery is not
secured by the Constitution or laws of the United States.

															It may be also observed that the freedom created and established
by the Thirteenth Amendment was further protected against assault
when the Fourteenth Amendment became a part of the supreme law of
the land, for that Amendment provided that no state shall deprive
any person of life, liberty, or property without due process of
law. To deprive any person of a privilege inhering in the freedom
ordained and established by the Thirteenth Amendment is to deprive
him of a privilege inhering in the liberty recognized by the
Fourteenth Amendment. It is true that the present case is not one
of the deprivation, by the Constitution or laws of the state, of the privilege of disposing of one's labor as he
deems proper. But it is one of a combination and conspiracy by
individuals acting in hostility to rights conferred by the
Amendment that ordained and established freedom and conferred upon
every person within the jurisdiction of the United States (not held
lawfully in custody for crime) the privileges that are fundamental
in a state of freedom, and which were violently taken from the
laborers in question solely because of their race and color.

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

															One of the earliest cases arising under the Thirteenth Amendment
was that of United States v. Cruikshank, 1 Woods, 308,
318, 320. It became necessary in that case for Mr. Justice Bradley,
holding the circuit court, to consider the scope and effect of the
Thirteenth Amendment and the extent of the power of Congress to
enforce its provisions. Referring to the Thirteenth Amendment, that
eminent jurist said that

															"this is not merely a prohibition against the passage Page 203 U. S. 29 or enforcement of any law inflicting or establishing slavery or
involuntary servitude, but it is a positive declaration that slavery shall not exist. . . . So, undoubtedly, by the
Thirteenth Amendment, Congress has power to legislate for the
entire eradication of slavery in the United States. This Amendment
had an affirmative operation the moment it was adopted. It
enfranchised four millions of slaves, if, indeed, they had not
previously been enfranchised by the operation of the Civil War.
Congress therefore acquired the power not only to legislate for the
eradication of slavery, but the power to give full effect to this
bestowment of liberty on these millions of people. All this it
essayed to do by the civil rights bill passed April 9, 1866, 14
Stat. 27, by which it was declared that all persons born in the
United States, and not subject to a foreign power (except Indians,
not taxed), should be citizens of the United States, and that such
citizens, of every race and color, without any regard to any
previous condition of slavery or involuntary servitude, should have the same right, in every state and territory, to make
and enforce contracts, to sue, be parties, and give evidence
to inherit, purchase, lease, sell, hold, and convey real and
personal property, and to full and equal benefit of all laws and
proceedings for the security of persons and property, as is enjoyed
by white citizens, and should be subject to like punishment, pains,
and penalties, and to none other, any law, etc., to the contrary
notwithstanding. It was supposed that the eradication of slavery
and involuntary servitude of every form and description required
that the slave should be made a citizen and placed on an entire
equality before the law with the white citizen, and therefore that
Congress had the power, under the amendment, to declare and
effectuate these objects. . . . Conceding this to be true (which I
think it is), Congress then had the right to go further and to
enforce its declaration by passing laws for the prosecution and
punishment of those who should deprive or attempt to deprive any
person of the rights thus conferred upon them. Without having
this power, Page 203 U. S. 30 Congress could not enforce the amendment. It cannot be
doubted, therefore, that Congress had the power to make it a penal
offense to conspire to deprive a person of, or to hinder him in,
the exercise and enjoyment of the rights and privileges conferred
by the Thirteenth Amendment and the laws thus passed in pursuance
thereof. But this power does not authorize Congress to pass
laws for the punishment of ordinary crimes and offenses against
persons of the colored race or any other race. That belongs to the
state government alone. All ordinary murders, robberies, assaults,
thefts and offenses whatsoever are cognizable only in the state
courts, unless, indeed, the state should deny to the class or
persons referred to the equal protection of the laws. . . . To
illustrate: if in a community or neighborhood composed principally
of whites, a citizen of African descent, or of the Indian race, not
within the exception of the Amendment, should propose to lease and
cultivate a farm, and a combination should be formed to expel
him and prevent him from the accomplishment of his purpose on
account of his race or color, it cannot be doubted that this would
be a case within in power of Congress to remedy and redress. It would be a case of interference with that person's exercise of
his equal rights as a citizen because of his race. But if
that person should be injured in his person or property by any
wrongdoer for the mere felonious or wrongful purpose of malice,
revenge, hatred, or gain, without any design to interfere with his
rights of citizenship or equality before the laws, as being a
person of a different race and color from the white race, it would
be an ordinary crime, punishable by the state laws only."

															This was followed by the Civil Rights Cases, 109 U. S. 3 , 109 U. S. 20 -22,
in which the Court passed upon the constitutionality of an act of
Congress providing for the full and equal enjoyment by every race
equally, of the accommodations, advantages, and facilities of
theaters and public conveyances, and other places of public
amusement, and in which the Court also considered the scope and
effect of the Thirteenth Amendment. In that case, the Court,
speaking by Mr. Justice Bradley, Page 203 U. S. 31 who, as we have seen, delivered the judgment in the case just
cited, said:

															" By its own unaided force and effect, it abolished
slavery and established universal freedom. Still, legislation may
be necessary and proper to meet all the various cases and
circumstances to be affected by it, and to prescribe proper modes
of redress for its violation in letter or spirit. And such
legislation may be primary and direct in its character, for the
Amendment is not a mere 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. 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. . . . The long
existence of African slavery in this country gave us very distinct
notions of what it was and what were its necessary incidents.
Compulsory service of the slave for the benefit of the master,
restraint of his movements except by the master's will, disability
to hold property, to make contracts, to have a standing in
court, to be a witness against a white person, and such like
burdens and incapacities, were the inseparable incidents of the
institution. Severer punishments for crimes were imposed on
the slave than on free persons guilty of the same offenses. . . .
We must not forget that the province and scope of the Thirteenth
and Fourteenth Amendments are different; the former simply
abolished slavery; the latter prohibited the states from abridging
the privileges or immunities of citizens of the United States, by
depriving them of life, liberty, or property without due process of
law, and Page 203 U. S. 32 from denying to any the equal protection of the laws. The
Amendments are different, and the powers of Congress under them are
different. What Congress has power to do under one, it may not have
power to do under the other. Under the Thirteenth Amendment, it has
only to do with slavery and its incidents. Under the Fourteenth
Amendment, it has power to counteract and render nugatory all state
laws and proceedings which have the effect to abridge any of the
privileges or immunities of citizens of the United States, or to
deprive them of life, liberty, or property without due process of
law, or to deny to any of them the equal protection of the laws.
Under the Thirteenth Amendment, the legislation, so far as
necessary or proper to eradicate all forms and incidents of
slavery and involuntary servitude, may be direct and
primary, operating upon the acts of individuals, whether sanctioned
by state legislation or not; under the Fourteenth, as we have
already shown, it must necessarily be and can only be corrective in
its character, addressed to counteract and afford relief against
state regulations or proceedings."

															I participated in the decision of the Civil Rights
Cases, but was not able to concur with my brethren in holding
the act there involved to be beyond the power of Congress. But I
stood with the Court in the declaration that the Thirteenth
Amendment not only established and decreed universal, civil and
political freedom throughout this land, but abolished the incidents
or badges of slavery, among which, as the Court declared, was the
disability, based merely on race discrimination, to hold property,
to make contracts, to have a standing in court, and to be a witness
against a white person.

															One of the important aspects in the present discussion of the Civil Rights Cases is that the Court there proceeded
distinctly upon the ground that, although the Constitution and
statutes of a state may not be repugnant to the Thirteenth
Amendment, nevertheless Congress, by legislation of a direct and
primary character, may, in order to enforce the Amendment, reach
and punish individuals whose acts are in hostility Page 203 U. S. 33 to rights and privileges derived from, or secured by, or
dependent upon, that Amendment.

															These views were explicitly referred to and reaffirmed in the
recent case of Clyatt v. United States, 197 U.
S. 207 . That was an indictment against a single
individual for having unlawfully and knowingly returned, forcibly
and against their will, two persons from Florida to Georgia to be
held in the latter state in a condition of peonage, in violation of
the statutes of the United States (Rev.Stat. 1990, 5526). A person
arbitrarily or forcibly held against his will for the purpose of
compelling him to render personal services in discharge of a debt
is in a condition of peonage. It was not claimed in that case that
peonage was sanctioned by or could be maintained under the
Constitution or laws either of Florida or Georgia. The argument
there on behalf of the accused was, in part, that the Thirteenth
Amendment was directed solely against the states and their laws,
and that its provisions could not be made applicable to individuals
whose illegal conduct was not authorized, permitted, or sanctioned
by some act, resolution, order, regulation, or usage of the state.
That argument was rejected by every member of this Court, and we
all agreed that Congress had power, under the Thirteenth Amendment,
not only to forbid the existence of peonage, but to make it an
offense against the United States for any person to hold,
arrest, return, or cause to be held, arrested or returned, or who
in any manner aided in the arrest or return, of another person to a
condition of peonage. After quoting the above sentences from the
opinion in the Civil Rights Cases, MR. JUSTICE BREWER,
speaking for the Court, said:

															"Other authorities to the same effect might be cited. It is not
open to doubt that Congress may enforce the Thirteenth Amendment by
direct legislation, punishing the holding of a person in slavery or
in involuntary servitude except as a punishment for crime. In the
exercise of that power, Congress has enacted these sections
denouncing peonage, and punishing one who holds another in that
condition of involuntary servitude. Page 203 U. S. 34 This legislation is not limited to the territories or other
parts of the strictly national domain, but is operative in the
states and wherever the sovereignty of the United States extends.
We entertain no doubt of the validity of this legislation, or its applicability to the case of any person holding another in
a state of peonage, and this whether there be municipal ordinance
or state law sanctioning such holding. It operates directly on
every citizen of the republic, wherever his residence may
be. "

															The Clyatt case proceeded upon the ground that,
although the Constitution and laws of the state might be in perfect
harmony with the Thirteenth Amendment, yet the compulsory holding
of one individual by another individual for the purpose of
compelling the former, by personal service, to discharge his
indebtedness to the latter created a condition of involuntary
servitude or peonage, was in derogation of the freedom established
by that Amendment, and therefore could be reached and punished by
the nation. Is it consistent with the principle upon which that
case rests to say that an organized body of individuals who
forcibly prevent free citizens, solely because of their race, from
making a living in a legitimate way, do not infringe any right
secured by the national Constitution, and may not be reached or
punished by the nation? One who is shut up by superior or
overpowering force, constantly present and threatening, from
earning his living in a lawful way of his own choosing, is as much
in a condition of involuntary servitude as if he were forcibly held
in a condition of peonage. In each case, his will is enslaved
because illegally subjected, by a combination that he cannot
resist, to the will of others in respect of matters which a freeman
is entitled to control in such way as to him seems best. It would
seem impossible under former decisions to sustain the view that a
combination or conspiracy of individuals, albeit acting without the
sanction of the state, may not be reached and punished by the
United States if the combination and conspiracy has for its object,
by force, to prevent or burden the free exercise or enjoyment Page 203 U. S. 35 of a right or privilege created or secured by the Constitution
or laws of the United States.

															The only way in which the present case can be taken out of
section 5508 is to hold that a combination or conspiracy of
individuals to prevent citizens of African descent, because of
their race, from freely disposing of their labor by contract does
not infringe or violate any right or privilege secured by the
Constitution or laws of the United States. But such a proposition,
I submit, is inadmissible if regard be had to former decisions. As
we have seen, this Court has held that the Thirteenth Amendment, by
its own force, without the aid of legislation, not only conferred
freedom upon every person (not legally held in custody for crime)
within the jurisdiction of the United States, but the right and
privilege of being free from the badges or incidents of slavery.
And it has declared that one of the insuperable incidents of
slavery, as it existed at the time of the adoption of the
Thirteenth Amendment, was the disability of those in slavery to
make contracts. It has also adjudged -- no member of this Court
holding to the contrary -- that any attempt to subject citizens to
the incidents or badges of slavery could be made an offense against
the United States. If the Thirteenth Amendment established freedom,
and conferred, without the aid of legislation, the right to be free
from the badges and incidents of slavery, and if the disability to
make or enforce contracts for one's personal services was a badge
of slavery as it existed when the Thirteenth Amendment was adopted,
how is it possible to say that the combination or conspiracy
charged in the present indictment, and conclusively established by
the verdict and judgment, was not in hostility to rights secured by
the Constitution?

															I have already said that the liberty protected by the Fourteenth
Amendment against state action inconsistent with due process of law
is neither more nor less than the freedom established by the
Thirteenth Amendment. This, I think, cannot be doubted. In Allgeyer v. Louisiana, 165 U. S. 578 , 165 U. S.
589 , Page 203 U. S. 36 we said that such liberty

															"means not only the right of the citizen to be free from the
mere physical restraint of his person, as by incarceration, but the
term is deemed to embrace the right of the citizen to be free in
the enjoyment of all his faculties; to be free to use them in
all lawful ways; to live and work when he will; to earn his
livelihood by any lawful calling; to pursue any livelihood or
avocation, and for that purpose to enter into all contracts which
may be proper, necessary, and essential to his carrying out to a
successful conclusion the purposes above mentioned. "

															All these rights, as this Court adjudged in the Allgeyer case, are embraced in the liberty which the
Fourteenth Amendment protects against hostile state action when
such state action is wanting in due process of law. They are rights
essential in the freedom conferred by the Thirteenth Amendment. If,
for instance, a person is prevented because of his race from living
and working where and for whom he will, or from earning his
livelihood by any lawful calling that he may elect to pursue, then
he is hindered in the exercise of rights and privileges secured to
freemen by the Constitution of the United States. If secured by the
Constitution of the United States, then unquestionably rights of
that class are embraced by such legislation as that found in
section 5508.

															The opinion of the Court, it may be observed, does not, in
words, adjudge section 5508 to be unconstitutional. But if its
scope and effect are not wholly misapprehended by me, the Court
does adjudge that Congress cannot make it an offense against the
United States for individuals to combine or conspire to prevent,
even by force, citizens of African descent, solely because of their
race, from earning a living. Such is the import and practical
effect of the present decision, although the Court has heretofore
unanimously held that the right to earn one's living in all legal
ways, and to make lawful contracts in reference thereto, is a vital
part of the freedom established by the Constitution, and
although it has been held, time and again, that Congress may, by
appropriate Page 203 U. S. 37 legislation, grant, protect, and enforce any right,
derived from, secured or created by, or dependent upon, that
instrument. These general principles, it is to be regretted, are
now modified so as to deny to millions of citizen laborers of
African descent, deriving their freedom from the nation, the right
to appeal for national protection against lawless combinations of
individuals who seek, by force, and solely because of the race of
such laborers, to deprive them of the freedom established by the
Constitution of the United States, so far as that freedom involves
the right of such citizens, without discrimination against them
because of their race, to earn a living in all lawful ways, and to
dispose of their labor by contract. I cannot assent to an
interpretation of the Constitution which denies national protection
to vast numbers of our people in respect of rights derived by them
from the nation. The interpretation now placed on the Thirteenth
Amendment is, I think, entirely too narrow, and is hostile to the
freedom established by the supreme law of the land. It goes far
towards neutralizing many declarations made as to the object of the
recent Amendments of the Constitution, a common purpose of which,
this Court has said, was to secure to a people theretofore in
servitude, the free enjoyment, without discrimination merely on
account of their race, of the essential rights that appertain to
American citizenship and to freedom. United States v.
Reese, 92 U. S. 214 , 92 U. S. 217 ; United States v. Cruikshank, 92 U. S.
542 , 92 U. S. 555 ; Ex Parte Virginia, 100 U. S. 334 , 100 U. S. 345 ; Strauder v. West Virginia, 100
U. S. 306 ; Neal v. Delaware, 103
U. S. 386 ; Civil Rights Cases, 109 U. S.
3 , 109 U. S. 23 .

															The objections urged to the view taken by the Court are not met
by the suggestion that this Court may revise the final judgment of
the state court if it should deny to the complaining party a right
secured by the federal Constitution, for the revisory power of this
Court would be of no avail to the complaining party if it be true,
as seems now to be adjudged, that a conspiracy to deprive colored
citizens, solely because of Page 203 U. S. 38 their race, of the right to earn a living in a lawful way
infringes no right secured to them by the federal Constitution.

															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, as the disability to make
valid contracts for one's services was, as this Court has said, an
inseparable incident of the institution of slavery which the
Thirteenth Amendment destroyed, and as a combination or conspiracy
to prevent citizens of African descent, solely because of their
race, from making and performing such contracts, is thus in
hostility to the rights and privileges that inhere in the freedom
established by that Amendment, I am of opinion that the case is
within section 5508, and that the judgment should be affirmed.

															For these reasons, I dissent from the opinion and judgment of
the court.

															[ Footnote 1 ]

															Dissent announced May 28, 1906, but not filed until October 24,
1906.

															[ Footnote 2 ]

															The indictment charged that

															"the said Berry Winn, Dave Hinton, Percy Legg, Joe Mardis, Joe
McGill, Dan Shelton, Jim Hall, and George Shelton, being then and
there persons of African descent, and citizens of the United States
and of the State of Arkansas, had then and there made and entered
into contracts and agreements with James A. Davis and James S.
Hodges, persons then and there doing business under the name of
Davis & Hodges, as copartners carrying on the business of
manufacturers of lumber at White Hall, in said county, the said
contracts being for the employment by said firm of the said Berry
Winn, Dave Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan Shelton,
Jim Hall, and George Shelton, as laborers and workmen in and about
their said manufacturing establishment, by which contracts the said
Berry Winn, Dave Hinton, Percy Legg, Joe Mardis, Joe McGill, Dan
Shelton, Jim Hall, and George Shelton were, on their part, to
perform labor and services at said manufactory, and were to
receive, on the other hand, for their labor and services,
compensation, the same being a right and privilege conferred upon
them by the Thirteenth Amendment to the Constitution of the United
States and the laws passed in pursuance thereof, and being a right
similar to that enjoyed in said state by the white citizens
thereof, and while the said Berry Winn, Dave Hinton, Percy Legg,
Joe Mardis, Joe McGill, Dan Shelton, Jim Hall, and George Shelton
were in the enjoyment of said right and privilege the said
defendants did knowingly, willfully, and unlawfully conspire as
aforesaid to injure, oppress, threaten, and intimidate them in the
free exercise and enjoyment of said right and privilege, and
because of their having so exercised the same, and because they
were citizens of African descent, enjoying said right, by then and
there notifying the said Berry Winn, Dave Hinton, Percy Legg, Joe
Mardis, Joe McGill, Dan Shelton, Jim Hall, and George Shelton that
they must abandon said contracts and their said work at said mill,
and cease to perform any further labor thereat, or receive any
further compensation for said labor, and by threatening, in case
they did not so abandon said work, to injure them, and by
thereafter then and there willfully and unlawfully marching and
moving in a body to and against the places of business of the said
firm while the said Berry Winn, Dave Hinton, Percy Legg, Joe
Mardis, Joe McGill, Dan Shelton, Jim Hall, and George Shelton were
engaged thereat, and while they were in the performance of said
contracts thereon, the said defendants being then and there armed
with deadly weapons, threatening and intimidating the said workmen
there employed, with the purpose of compelling them, by violence
and threats and otherwise, to remove from said place of business,
to stop said work, and to cease the enjoyment of said right and
privilege, and by then and there willfully, deliberately, and
unlawfully compelling said Berry Winn, Dave Hinton, Percy Legg, Joe
Mardis, Joe McGill, Dan Shelton, Jim Hall, and George Shelton to
quit said work and abandon said place and cease the free enjoyment
of all advantages under said contracts, the same being so done by
said defendants and each of them for the purpose of driving the
said Berry Winn, Dave Hinton, Percy Legg, Joe Mardis, Joe McGill,
Dan Shelton, Jim Hall, and George Shelton from said place of
business and from their labor because they were colored men and
citizens of African descent, contrary to the form of the statute in
such case made and provided, and against the peace and dignity of
the United States."