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ments are different, and the powers of Con- | Stat. 1901, pp. 1266, 3715). A person arbigress under them are different. What Con- trarily or forcibly held against his will for gress has power to do under one, it may not the purpose of compelling him to render have power to do under the other. Under personal services in discharge of a debt is in the 13th Amendment it has only to do with a condition of peonage. It was not claimed slavery and its incidents. Under the 14th in that case that peonage was sanctioned Amendment it has power to counteract and by or could be maintained under the Conrender nugatory all state laws and proceed- stitution or laws either of Florida or Georings which have the effect to abridge any gia. The argument there on behalf of the of the privileges or immunities of citizens accused was, in part, that the 13th Amendof the United States, or to deprive them of ment was directed solely against the states life, liberty, or property without due proc- and their laws, and that its provisions could ess of law, or to deny to any of them the not be made applicable to individuals whose equal protection of the laws. Under the illegal conduct was not authorized, permit13th Amendment, the legislation, so far as ted, or sanctioned by some act, resolution, necessary or proper to eradicate all forms order, regulation, or usage of the state. and incidents of slavery and involuntary That argument was rejected by every memservitude, may be direct and primary, oper- ber of this court, and we all agreed that ating upon the acts of individuals, whether Congress had power, under the 13th Amendsanctioned by state legislation or not; un-ment, not only to forbid the existence of der the 14th, as we have already shown, it peonage, but to make it an offense against must necessarily be and can only be cor- the United States for any person to hold, rective in its character, addressed to coun- arrest, return, or cause to be held, arrested teract and afford relief against state regu- or returned, or who in any manner aided lations or proceedings." in the arrest or return, of another person, to a condition of peonage. After quoting the above sentences from the opinion in the Civil Rights Cases, Mr. Justice Brewer, speaking for the court, said: "Other authorities to the same effect might be cited. It is not open to doubt that Congress may enforce the 13th Amendment by direct legislation, punishing the holding of a person in slavery or in involuntary servitude, except as a punishment for crime. In the exercise of that power Congress has enacted these sections denouncing peonage, and punishing one who holds another in that condition of involuntary servitude. This 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 valid

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I participated in the decision of the Civil Rights Cases, but was not able to concur with my brethren in holding the act there | involved to be beyond the power of Congress. But I stood with the court in the declaration that the 13th Amendment not only established and decreed universal, civil and political freedom throughout this land, but abolished the incidents or badges of slavery, among which, as the court declared, was the disability, based merely on race discrimination, to hold property, to make contracts, to have a standing in court, and to be a witness against a white person.

One of the important aspects in the present discussion of the Civil Rights Cases is that the court there proceeded distinctly upon the ground that although the Constitution and statutes of a state may not be repugnant to the 13th Amendment, never-ity of this legislation, or of its applicability theless, Congress, by legislation of a direct and primary character, may, in order to enforce the Amendment, reach and punish individuals whose acts are in hostility to rights and privileges derived from, or secured by, or dependent upon, that Amend

ment.

These views were explicitly referred to and reaffirmed in the recent case of Clyatt v. United States, 197 U. S. 207, 49 L. ed. 726, 25 Sup. Ct. Rep. 429. That was an indictment against a single individual for having unlawfully and knowingly returned, forcibly and against their will, two persons from Florida to Georgia, to be held in the latter state in a condition of peonage, in violation of the statutes of the United States (Rev. Stat. 1990, 5526, U. S. Comp.

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 13th Amendment, yet the compulsory holding of one individual by another individual for the purpose of compelling the former, by personal service, to discharge his indebtedness to the latter, created a condition of involuntary servitude or peonage, was in derogation of the freedom established by that Amendment, and, therefore, could be reached and punished by the nation. Is it consistent

was adopted, how is it possible to say that the combination or conspiracy charged in the present indictment, and conclusively established by the verdict and judgment, was not in hostility to rights secured by the Constitution?

I have already said that the liberty protected by the 14th Amendment against state action inconsistent with due process of law is neither more nor less than the freedom established by the 13th Amendment. This, I think, cannot be doubted. In Allgeyer v. Louisiana, 165 U. S. 578, 589, 41 L. ed. 832, 835, 17 Sup. Ct. Rep. 427, 431, 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

with the principle upon which that case, ery, as it existed when the 13th Amendment rests to say that an organized body of individuals who forcibly prevent free citizens, solely because of their race, from making a living in a legitimate way, do not infringe any right secured by the national Constitution, and may not be reached or 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 combina- | all his faculties; to be free to use them in tion 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 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 § 5508 (U. S. Comp. Stat. 1901, p. 3712), 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 13th 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 The opinion of the court, it may be obbadges or incidents of slavery. And it has served, does not, in words, adjudge § 5508 declared that one of the insuperable inci- to be unconstitutional. But if its scope dents of slavery, as it existed at the time of and effect are not wholly misapprehended the adoption of the 13th Amendment, was by me, the court does adjudge that Conthe disability of those in slavery to make gress cannot make it an offense against the contracts. It has also adjudged-no mem- United States for individuals to combine or ber of this court holding to the contrary-conspire to prevent, even by force. citizens that any attempt to subject citizens to the of African descent, solely because of their incidents or badges of slavery could be made race, from earning a living. Such is the an offense against the United States. If import and practical effect of the present the 13th Amendment established freedom, decision, although the court has heretofore and conferred, without the aid of legisla-unanimously held that the right to earn tion, the right to be free from the badges and incidents of slavery, and if the disability to make or enforce contracts for one's personal services was a badge of slav

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

one's living in all legal ways, and to make lawful contracts in reference thereto, is a vital part of the freedom established by the Constitution, and although it has been held,

disability to make valid contracts for one's services was, as this court has said, an inseparable incident of the institution of slavery which the 13th 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 hos

in the freedom established by that Amendment,-I am of opinion that the case is within § 5508, and that the judgment should be affirmed.

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

time and again, that Congress may, by appropriate legislation, grant, protect, and enforce any right, derived from, secured or created by, or dependent upon, that 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 pro-tility to the rights and privileges that inhere tection against lawless combinations of individuals who seek, by force, and solely because of the race of such laborers, to deprive them of the freedom established by the Constitution of the United States, so far as that freedom involves the right of such citizens, without discrimination against them because of their race, to earn a living in all lawful ways, and to dispose of their labor by contract. I cannot assent to an interpretation of the Constitution which denies national protection to vast numbers of our people in respect of rights derived by them from the nation. The interpretation now placed on the 13th Amendment is, I think, entirely too narrow, and is hostile to the freedom established by the Supreme Law of the land. It goes far towards neutralizing many declarations made as to the object of the recent Amendments of the Constitution, a common purpose of which, this court has said, was to secure to a people theretofore in servitude, the free enjoyment, without discrimination merely on ac

count of their race, of the essential rights

that appertain to American citizenship and to freedom. United States v. Reese, 92 U. S. 214, 217, 23 L. ed. 563, 564; United States v. Cruikshank, 92 U. S. 542, 555, 23 L. ed. 588, 592; Virginia v. Rives (Ex parte Virginia) 100 U. S. 334, 25 L. ed. 675; Ex parte Virginia, 100 U. S. 345, 25 L. ed. 679; Strauder v. West Virginia, 100 U. S. 306, 25 L. ed. 665; Neal v. Delaware, 103 U. S. 386, 26 L. ed. 570; Civil Rights Cases, 109 U. S. 3, 23, 27 L. ed. 835, 843, 3 Sup. Ct. Rep. 18.

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

CHARLES
CHARLES S. LANDRAM and John A.
Broaddus, Executors of Constance K.
Vertner, Deceased, and Lillie K. Vertner,
Appts.,

V.

GABRIELLA K. JORDAN.

Appeal-questions reviewable-who may be heard.

1. One who succeeds, on a bill of review, in having upheld as to her alone a trust declared void by the original decree, cannot, on appeal, where she does not herself appeal, go beyond supporting the modified decree and opposing every assignment of

error.*

Testamentary trust-effect of partial inva

lidity-perpetuities.

2. An equitable life estate given to a niece of the testator in the income from a specified piece of land excepted from the general scheme for the creation of a trust fund from the rents of the testator's real property for the benefit of his grandchildren does not fail because of the repugnancy of the effect of which is to give the testator's this scheme to the rule against perpetuities, daughter all the rest of the property, including the remainder in the life estate; nor

does this result follow because the trustees are directed to keep such income up to $40 per month from the other property included in the trust †

Bill of review-parties.

testator's son should have been made a
3. The objection that the widow of the
party to a bill to review a decree declar-
ing that a trust created by the will in favor
of the testator's grandchildren violated the
rule against perpetuities is too late when
first raised on the hearing of a demurrer
to the bill of review, where the fact of her
existence does not appear of record.
[No. 179.]

As the nation has destroyed both slavery and involuntary servitude everywhere with- Argued October 9, 1906. Decided October

22, 1906.

*Ed. Note.-For cases in point. se vol. 3,

in the jurisdiction of the United States, and invested Congress with power, by appropriate legislation, to protect the freedom thus Cent. Dig. Appeal and Error, §§ 3573, 3575, 3576, established against all the badges and incidents of slavery as it once existed; as the

3578.

tEd. Note.-For cases in point, see vol. 49, Cent. Dig. Wills, § 1644.

27 S.C.-2

APPEAL from the Court of Appeals of my desire that she shall have a regular in

the District of Columbia to review a decree which affirmed a decree of the Supreme Court of the District, modifying, on demurrer to a bill of review, a decree which declared a trust to violate the rule against perpetuities, and upholding such trust as to the party filing such bill. Affirmed.

See same case below, 25 App. D. C. 291. The facts are stated in the opinion. Messrs. John J. Hemphill and James Hemphill for appellants.

come of at least $40 per month, and that the same shall be paid over to her monthly; but if the income derived from said premises shall amount to a sum in excess of $40 per month, she shall have the whole thereof." (Rec. 10.)

Item 7 directs the trustee to let all the Washington property, except 611 M street, and out of the rents to pay $90 a month to the testator's daughter, Constance K. Vertner, as ordered in item 5; the residue, so Messrs. Charles F. Wilson and Frank W. far as necessary, to be applied to the supHackett for appellee. port and education of her three children,

Mr. Frank Sprigg Perry for Mary B. named, with further provisions. Item 8 Kearney.

gives the remainder in fee of 611 M street to the testator's grandson, provided that if

Mr. Justice Holmes delivered the opinion Gabriella Jordan dies before January 1, of the court:

This is an appeal from a decree of the court of appeals of the District of Columbia affirming a decree of the supreme court upon a bill of review brought by Gabriella K. Jordan, the appellee. The decree under review was rendered in a suit for the construction of the will of Thomas Kearney and for the determination of the validity of a trust created by it, so far as the same concerned land in the District of Columbia. That decree declared the trust bad as attempting to create a perpetuity. Under the bill of review the decree was modified, on demurrer, to the extent of the interest of Gabriella K. Jordan, and the trust was declared valid as to her. 25 App. D. C. 291. The executors of the testator's heirs and a daughter of the said heir appealed to this court.

Thomas Kearney died on July 5, 1896. The will disposes of land in various places. In item 3 it enumerates the testator's property in Washington. In item 5 it devises this and other property upon a trust to be continued until January 1, 1928, and there and elsewhere, with the following exception, makes a fund from the Washington rents and profits to be disposed of as directed in the will. Item 6 is as follows:

"I hereby authorize and direct that my said trustee shall, during the natural life of my beloved niece, Gabriella K. Jordan, pay over to her regularly each month, as soon as collected, all rents and revenues collected or derived from that certain property described in the third item hereof as lot No. 611 'M' Street, N. W., Washington, D. C.; but, in case said rents and revenues shall at any time be less than the sum of $40 for any one or more months, then my said trustees are hereby authorized and instructed to add to the sum so collected a sufficient amount to make the said amount of $40 for each and every month; it being

1928, he shall only receive the rents and profits, and if she dies before the grandson reaches the age of twenty-two the rents shall be disposed of as provided in item 7 as to other Washington property. In item 21, the testator, "for fear that there may be some difficulty in construing the different provisions" of the will, states his intention that all the money arising from the Washington rents, "except that which is to go to Gabriella K. Jordan, shall be placed in a common fund for the payment (1) of taxes, insurance and repairs on said property and of the premises at Luray, Virginia; (2) of (90) ninety dollars per month to my said daughter, Constance K. Vertner, during her natural life; (3) for the support, education, and maintenance of my said three Vertner grandchildren until Lillie K. Vertner shall have arrived at the age of nineteen years, and until Edmund K. and Thomas K. shall have arrived at the age of twenty-two years respectively."

The persons in whose favor were made the provisions which were adjudged bad were one of the testator's heirs, his daughter, Constance K. Vertner, and the children of Constance. The daughter pleaded that the other heir, Edmund Kearney, also provided for in the will, died, leaving her his heir, that the trust was bad, and, by implication, that she was entitled to the property which it embraced. She now is dead. By the original decree the whole trust fund, including that given to Gabriella Jordan, went to the testator's heirs as property undisposed of by the will. The only person dissatisfied with that decree was Gabriella Jordan, and, on the other hand, the executors and the children of Constance are the only appellants from the decree on review. According to the rule that has been laid down in this court, Gabriella, as she did not appeal, cannot go beyond supporting the decree and opposing every assignment of error.

Mt. Pleasant v. Beckwith, 100 U. S. 514, 527, 25 L. ed. 699, 702; The Stephen Morgan (The Stephen Morgan v. Good) 94 U. S. 599, 24 L. ed. 266; Chittenden v. Brewster, 2 Wall. 191, 196, 17 L. ed. 839, 841; Field v. Barber Asphalt Paving Co. 194 U. S. 618, 621, 48 L. ed. 1142, 1153, 24 Sup. Ct. Rep. 784. We assume this rule to be correct. Although her counsel attempted to argue the validity of the trust as a whole, and other questions, we assume, without deciding, the decree to be unimpeachable and right except so far as appealed from. Therefore we shall confine ourselves to considering whether the gift to Gabriella is so intimately connected with the failing scheme as to fail with it.

It would be a strong thing to say that we gather from this will an intent that, if the trust so far as it concerns the testatator's descendants should fail because they prefer to take the property by intestacy free from the limitations of the will, therefore the one gift outside his family should be defeated also. The trust is not a meta

physical entity or a Prince Rupert's drop which flies to pieces if broken in any part. It is a provision to benefit descendants and a niece. There is no general principle by which the benefits must stand or fall together. It is true that all the Washington property was given to the trustees in one clause and that a part of the scheme in favor of the testator's grandchildren was the creation of a fund from the rents. But, as is stated in item 21, 611 M street was excepted from the scheme, and the whole income of this lot, or, in other words, an equitable estate in the specified land, is given to Gabriella Jordan for life by item

6. If that were all we see no reason for a doubt that that gift would be good, whether the gift to the other beneficiaries were good or not. The fact that the testator's daughter takes all the rest of the property, instead of her children getting a postponed interest in a part, is no ground for denying to the niece the life estate given to her in an identified and excepted piece of land. It does not make the case any worse that a part of the property thus going to the testator's daughter is the remainder in the estate given to his niece.

The appellants lay hold of the instructions to the trustees to add to the rents

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V.

WILLIAM H. CLARK, Morris A. Spoonts, Charles A. Culberson, and Phillips Investment Company.

Judgment-fraud-notice.

judgment on a policy of life insurance which induces the payment into court of the amount of recovery, out of which the clerk of court pays over the sums called for in certain assignments by way of contingent fees for professional services in collecting the insurance, cannot be established by the mere fact that, while the assignees held an interest in the policy only, they were assignees of a chose in action, and took it subject to the equities.* Judgment-fraud-notice.

1. Notice of the fraud in recovering a

2. Notice of the denial of the death of the insured in the answer in an action on a policy of insurance is not notice of the fraud in recovering judgment on the policy while the insured was alive which will impeach such judgment as to the parties to whom the clerk of court pays over, out of such judgment, the sums called for in certhe money paid into court in satisfaction of tain assignments of an interest in the policy by way of contingent fees for professional services, rendered in good faith in collecting

the insurance.

[No. 25.]

ber 29, 1906.

enough to make Gabriella's income up to Argued October 15, 16, 1906. Decided Octo$40 a month, and argue as if the gift were in substance only a gift of $40 a month from a fund that cannot be established.

PPEAL from the Circuit Court of the

Such is not the fact. The gift is primarily A United States for the Northern Dis

and in any event a gift of the income of trict of Texas to review a decree enjoining 611 M street. But whatever may be the the setting up of a judgment at law on fate of the rest of the trust we see nothing policies of life insurance as to the benefi

*Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 858, 1552-1555.

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