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ments are different, and the powers of Con- Stat. 1901, pp. 1266, 3715). A person arbizress 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, I participated in the decision of the Civil to a condition of peonage. After quoting Rights Cases, but was not able to concur the above sentences from the opinion in the with my brethren in holding the act there Civil Rights Cases, Mr. Justice Brewer, involved to be beyond the power of Con- speaking for the court, said: "Other augress. But I stood with the court in the thorities to the same effect might be cited. declaration that the 13th Amendment not It is not open to doubt that Congress may only established and decreed universal, civil enforce the 13th Amendment by direct leg. and political freedom throughout this land, islation, punishing the holding of a person but abolished the incidents or badges of in slavery or in involuntary servitude, exslavery, among which, as the court declared, cept as a punishment for crime. In the exwas the disability, based merely on race ercise of that power Congress has enacted discrimination, to hold property, to make these sections denouncing peonage, and puncontracts, to have a standing in court, and ishing one who holds another in that condito be a witness against a white person. tion of involuntary servitude. This legis.

One of the important aspects in the pres- lation is not limited to the territories or ent discussion of the Civil Rights Cases is other parts of the strictly national domain, that the court there proceeded distinctly but is operative in the states and wherever upon the ground that although the Consti- the sovereignty of the United States extution and statutes of a state may not be tends. We entertain no doubt of the validrepugnant to the '13th Amendment, neverity of this legislation, or of its applicability theless, Congress, by legislation of a direct to the case of any person holding another and primary character, may, in order to en- in a state of peonage, and this whether there force the Amendment, reach and punish in-be municipal ordinance or state law sancdividuals whose acts are in hostility to tioning such holding. It operates directly rights and privileges derived from, or se- on every citizen of the republic, wherever cured by, or dependent upon, that Amend his residence may be." The Clyatt Case ment.

proceeded upon the ground that, although These views were explicitly referred to the Constitution and laws of the state and reaffirmed in the recent case of Clyatt might be in perfect harmony with the 13th v. United States, 197 U. S. 207, 49 L. ed. Amendment, yet the compulsory holding of 726, 25 Sup. Ct. Rep. 429. That was an in-one individual by another individual for the dictment against a single individual for hav- purpose of compelling the former, by pering unlawfully and knowingly returned, sonal service, to discharge his indebtedness forcibly and against their will, two persons to the latter, created a condition of involfrom Florida to Georgia, to be held in the untary servitude or peonage, was in derogalatter state in a condition of peonage, in tion of the freedom established by that violation of the statutes of the United Amendment, and, therefore, could be reached States (Rev. Stat. 1990, 5526, U. S. Comp. I and punished by the nation. Is it consistent with the principle upon which that case, ery, as it existed when the 13th Amendment rests to say that an organized body of in- was adopted, how is it possible to say that dividuals who forcibly prevent free citizens, the combination or conspiracy charged in solely because of their race, from making a the present indictment, and conclusively esliving in a legitimate way, do not infringe tablished by the verdict and judgment, was any right secured by the national Consti- not in hostility to rights secured by the tution, and may not be reached or pun- Constitution? ished by the nation? One who is shut up I have already said that the liberty proby superior or overpowering force, con- tected by the 14th Amendment against state stantly present and threatening, from earn- action inconsistent with due process of law ing his living in a lawful way of his own is neither more nor less than the freedom choosing, is as much in a condition of in- established by the 13th Amendment. This, voluntary servitude as if he were forcibly I think, cannot be doubted. In Allgeyer v. held in a condition of peonage. In each Louisiana, 165 U. S. 578, 589, 41 L. ed. 832, case his will is enslaved, because illegally 835, 17 Sup. Ct. Rep. 427, 431, we said that subjected, by a combination that he cannot such liberty “means not only the right of resist, to the will of others in respect of the citizen to be free from the mere physical matters which a freeman is entitled to con- restraint of his person, as by incarceration, trol in such way as to him seems best. It but the term is deemed to embrace the right would seem impossible, under former de of the citizen to be free in the enjoyment of cisions, to sustain the view that a combina- all his faculties; to be free to use them in tion or conspiracy of individuals, albeit act- all lawful ways; to live and work when he ing without the sanction of the state, may will; to earn his livelihood by any lawful not be reached and punished by the United calling; to pursue any livelihood or avocaStates, if the combination and conspiracy tion, and for that purpose to enter into all has for its object, by force, to prevent or contracts which may be proper, necessary, burden the free exercise or enjoyment of a and essential to his carrying out to a sucright or privilege created or secured by the cessful conclusion the purposes above . menConstitution or laws of the United States. tioned." All these rights, as this court ad.

The only way in which the present case judged in the Allgeyer Case, are embraced in can be taken out of $ 5508 (U. S. Comp. the liberty which the 14th Amendment proStat. 1901, p. 3712), is to hold that a com- tects against hostile state action, when such bination or conspiracy of individuals to pre- state action is wanting in due process of vent citizens of African descent, because of law. They are rights essential in the freetheir race, from freely disposing of their dom conferred by the 13th Amendment. If, labor by contract, does not infringe or vio- for instance, a person is prevented, because late any right or privilege secured by the of his race, from living and working where Constitution or laws of the United States. and for whom he will, or from earning his But such a proposition, I submit, is inad- livelihood by any lawful calling that he missible, if regard be had to former deci- may elect to pursue, then he is hindered in sions. As we have seen, this court has held the exercise of rights and privileges secured that the 13th Amendment, by its own force, to freemen by the Constitution of the Unitwithout the aid of legislation, not only con- ed States. If secured by the Constitution of ferred freedom upon every person (not le- the United States, then, unquestionably, gally held in custody for crime) within the rights of that class are embraced by such jurisdiction of the United States, but the legislation as that found in $ 5508. 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 one's living in all legal ways, and to make and incidents of slavery, and if the dis-lawful contracts in reference thereto, is a ability to make or enforce contracts for vital part of the freedom established by the one's personal services was a badge of slav- l Constitution, and although it has been held,

V.

time and again, that Congress may, by apo disability to make valid contracts for one's propriate legislation, grant, protect, and en services was, as this court has said, an inforce any right, derived from, secured or separable incident of the institution of slavcreated by, or dependent upon, that instru-ery which the 13th Amendment destroyed; ment. These general principles, it is to be and as a combination or conspiracy to preregretted, are now modified, so as to deny vent citizens of African descent, solely to millions of citizen-laborers of African de- because of their race, from making and scent, deriving their freedom from the na- performing such contracts, is thus in hostion, the right to appeal for national pro- tility to the rights and privileges that inhere tection against lawless combinations of in- in the freedom established by that Amenddividuals who seek, by force, and solely be- ment, I am of opinion that the case is cause of the race of such laborers, to de- within $ 5508, and that the judgment should prive them of the freedom established by be affirmed. the Constitution of the United States, so

For these reasons, I dissent from the far as that freedom involves the right of opinion and judgment of the court. 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 CHARLES S. LANDRAM and John A. interpretation of the Constitution which Broaddus, Executors of Constance K. denies national protection to vast numbers

Vertner, Deceased, and Lillie K. Vertner,

Appts., of our people in respect of rights derived by them from the nation. The interpreta

GABRIELLA K. JORDAN, tion now placed on the 13th Amendment is, I think, entirely too narrow, and is hostile to the freedom established by the Supreme

Appeal-questions reviewable—who may be

heard. Law of the land. It goes far towards neu

1. One who succeeds, on a bill of retralizing many declarations made as to the view, in having upheld as to her alone a object of the recent Amendments of the trust declared void by the original decree, Constitution, a common purpose of which, cannot, on appeal, where she does not herself this court has said, was to secure to a peo appeal, go beyond supporting the modified ple theretofore in servitude, the free enjoy- decree and opposing every assignment of

error. * ment, without discrimination merely on account of their race, of the essential rights Testamentary trust-effect of partial inva

iidity-perpetuities. that appertain to American citizenship and

2. An equitable life estate given to a to freedom. United States v. Reese, 92 U. niece of the testator in the income from a S. 214, 217, 23 L. ed. 563, 564;. United States specified piece of land excepted from the v. Cruikshank, 92 U. S. 542, 555, 23 L. ed. general scheme for the creation of a trust 588, 592; Virginia v. Rives (Ex parte Vir- | fund from the rents of the testator's real ginia) 100 U. S. 331, 25 L. ed. 675; Ex parte property for the benefit of his grandchildren Virginia, 100 U. S. 345, 25 L. ed. 679; Strau- does not fail because of the repugnancy of der v. West Virginia, 100 U. S. 306, 25 L. ed. the effect of which is to give the testator's

this scheme to the rule against perpetuities, 665; Neal v. Delaware, 103 U. S. 386, 26 L. daughter all the rest of the property, ined. 570; Civil Rights Cases, 109 U. S. 3, 23, cluding the remainder in the life estate; nor 27 L. ed. 835, 843, 3 Sup. Ct. Rep. 18.

does this result follow because the trustees The objections urged to the view taken are directed to keep such income up to $40 by the court are not met by the suggestion per month from the other property included that this court may revise the final judg- in the trust ť ment of the state court, if it should deny to Bill of review-parties. the complaining party a right secured by the

3. The objection that the widow of the

testator's son should have been made a Federal Constitution; for the revisory power party to a bill to review a decree declarof this court would be of no avail to the ing that a trust created by the wall in favor complaining party if it be true, as seems of the testator's grandchildren violated the now to be adjudged, that a conspiracy to rule against perpetuities is too late when deprive colored citizens, solely because of first raised on the hearing of a demurrer their race, of the right to earn a living in a to the bill of review, where the fact of her lawful way, infringes no right secured to existence does not appear of record. them by the Federal Constitution.

[No. 179.] As the nation has destroyed both slavery and involuntary servitude everywhere with Argued October 9, 1906. Decided October in the jurisdiction of the United States, and

22, 1906. invested Congress with power, by appropri- *Ed. Note.-For

in point. se vol. 3, ate legislation, to protect the freedom thus

Cent. Dig. Appeal and Error, $$ 3573, 3575, 3576, established against all the badges and inci

Ed. Note.-For cases in point, see vol. 49, dents of slavery as it once existed; as the

Cent. Dig. Wills, § 1644. 27 S.C.-2

cases

3578.

A a

the District of Columbia to review a decome of at least $40 per month, and that the cree which affirmed a decree of the Supreme same shall be paid over to her monthly; Court of the District, modifying, on demur- but if the income derived from said premrer to a bill of review, a decree which de- ises shall amount to a sum in excess of $40 clared a trust to violate the rule against per month, she shall have the whole thereperpetuities, and upholding such trust as of.” (Rec. 10.) to the party filing such bill. Affirmed.

Item 7 directs the trustee to let all the See same case below, 25 App. D. C. 291. Washington property, except 611 M street, The facts are stated in the opinion. and out of the rents to pay $90 a month to

Messrs. John J. Hemphill and James the testator's daughter, Constance K. VertHemphill for appellants.

ner, 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:

1928, he shall only receive the rents and This is an appeal from a decree of the profits, and if she dies before the grandson court of appeals of the District of Columbia reaches the age of twenty-two the rents affirming a decree of the supreme court upon shall be disposed of as provided in item 7 a bill of review brought by Gabriella K. as to other Washington property. In item Jordan, the appellee. The decree under re- 21, the testator, “for fear that there may view was rendered in a suit for the con- be some difficulty in construing the differstruction of the will of Thomas Kearney and ent provisions” of the will, states his in. for the determination of the validity of a tention that all the money arising from the trust created by it, so far as the same con Washington rents, “except that which is to cerned land in the District of Columbia. go to Gabriella K. Jordan, shall be placed That decree declared the trust bad as at- in a common fund for the payment (1) of tempting to create a perpetuity. Under taxes, insurance and repairs on said propthe bill of review the decree was modified, erty and of the premises at Luray, Vir. on demurrer, to the extent of the interest ginia; (2) of (90) ninety dollars per month of Gabriella K. Jordan, and the trust was to my said daughter, Constance K. Vertner, declared valid as to her. 25 App. D. C. 291. during her natural life; (3) for the support, The executors of the testator's heirs and a education, and maintenance of my said daughter of the said heir appealed to this three Vertner grandchildren until Lillie K. court.

Vertner shall have arrived at the age of Thomas Kearney died on July 5, 1896. nineteen years, and until Edmund K. and The will disposes of land in various places. Thomas K. shall have arrived at the age of In item 3 it enumerates the testator's prop- twenty-two years respectively.” erty in Washington. In item 5 it devises The persons in whose favor were made this and other property upon a trust to be the provisions which were adjudged bad continued until January 1, 1928, and there were one of the testator's heirs, his daughand elsewhere, with the following exception, ter, Constance K. Vertner, and the children makes a fund from the Washington rents of Constance. The daughter pleaded that and profits to be disposed of as directed the other heir, Edmund Kearney, also proin the will. Item 6 is as follows:

vided for in the will, died, leaving her his "I hereby authorize and direct that my beir, that the trust was bad, and, by imsaid trustee shall, during the natural life plication, that she was entitled to the propof my beloved niece, Gabriella K. Jordan, erty which it embraced. She now is dead. pay over to her regularly each month, as By the original decree the whole trust fund, soon as collected, all rents and revenues col. including that given to Gabriella Jordan, lected or derived from that certain prop- went to the testator's heirs as property unerty described in the third item hereof as disposed of by the will. The only person lot No. 611 'M' Street, N. W., Washington, dissatisfied with that decree was Gabriella D. C.; but, in case said rents and revenues Jordan, and, on the other hand, the execushall at any time be less than the sum of tors and the children of Constance are the $40 for any one or more months, then my only appellants from the decree on review. said trustees are hereby authorized and in- According to the rule that has been laid structed to add to the sum so collected a down in this court, Gabriella, as she did not sufficient amount to make the said amount appeal, cannot go beyond supporting the deof $40 for each and every month; it being cree and opposing every assignment of error. Mt. Pleasant v. Beckwith, 100 U. S. 514, to hinder the trustees from keeping the in527, 25 L. ed. 699, 702; The Stephen Morgan come up to $40 from the other property de(The Stephen Morgan v. Good) 94 U. s. vised to them. Of course, they could not 599, 24 L. ed. 266; Chittenden v. Brewster, derive income from property not included 2 Wall. 191, 196, 17 L. ed. 839, 841; Field in the trust, and only the property inv. Barber Asphalt Paving Co. 194 U. S. 618, cluded is charged with the liability. The 621, 48 L. ed. 1142, 1153, 24 Sup. Ct. Rep. decree may be modified by inserting after 784. We assume this rule to be correct. the words “against his entire estate” the Although her counsel attempted to argue words “in the District of Columbia.” the validity of the trust as a whole, and It is objected in argument, although not other questions, we assume, without de- in the pleadings, that the widow of Edciding, the decree to be unimpeachable andmund Kearney has a right of dower in the right except so far as appealed from. Washington estate which descended to him, Therefore we shall confine ourselves to con- and that she should have been made party sidering whether the gift to Gabriella is so to the bill of review. The fact of the widintimately connected with the failing scheme ow's existence does not appear of record as as to fail with it.

against the appellees, and we agree with It would be a strong thing to say that the court of appeals that the objection is we gather from this will an intent that, made too late. if the trust so far as it concerns the testa- Decree affirmed. tator's descendants should fail because they prefer to take the property by intestacy free from the limitations of the will, therefore FIDELITY MUTUAL LIFE INSURANCE the one gift outside his family should be

COMPANY, Appt., defeated also. The trust is not a meta

V. physical entity or a Prince Rupert's drop WILLIAM H. CLARK, Morris A. Spoonts, which flies to pieces if broken in any part. Charles A. Culberson, and Phillips InvestIt is a provision to benefit descendants and

ment Company. a niece.

There is no general principle by which the benefits must stand or fall to. Judgment-fraud---notice. gether. It is true that all the Washington judgment on a policy of life insurance which

1. Notice of the fraud in recovering a clause and that a part of the scheme in amount of recovery, out of which the clerk

induces the payment into court of the favor of the testator's grandchildren was of court pays over the sums called for in the creation of a fund from the rents. But, certain assignments by way of contingent as is stated in item 21, 611 M street was fees for professional services in collecting excepted from the scheme, and the whole the insurance, cannot be established by the income of this lot, or, in other words, an

mere fact that, while the assignees held an equitable estate in the specified land, is interest in the policy only, they were aggiven to Gabriella Jordan for life by item signees of a chose in action, and took it sub

ject to the equities.* 6. If that were all we see no reason for a

Judgment-fraud-notice. doubt that that gift would be good, whether

2. Notice of the denial of the death of the gift to the other beneficiaries were the insured in the answer in an action on a good or not. The fact that the testator's policy of insurance is not notice of the daughter takes all the rest of the property, fraud in recovering judgment on the policy instead of her children getting a postponed while the insured was alive which will iminterest in a part, is no ground for denying peach such judgment as to the parties to to the niece the life estate given to her in whom the clerk of court pays over, out of an identified and excepted piece of land. It such judgment, the sums called for in cer

the money paid into court in satisfaction of does not make the case any worse that a tain assignments of an interest in the policy part of the property thus going to the tes by way of contingent fees for professional tator's daughter is the remainder in the es services, rendered in good faith in collecting tate given to his niece.

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

[No. 25.] 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

ber 29, 1906. 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 theit Northern Dise

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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