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"unusual" when duly imposed. Nor can whipping, for conviction of brutal crimes effected by force, be so pronounced.1 "It has been found to be the most efficacious of penalties in checking certain classes of brutal crimes, and it may be far less cruel than certain durations and kinds of imprisonment. It cannot be rejected, therefore, as conflicting with the principle embodied in the constitutional sanction. above given, though in some jurisdictions it may be forbidden by statute." It may be added that the clause is exclusively applicable to the Federal courts, though similar provisions exist in the constitutions of most of the states.3 § 581. By the seventh amendment, "in suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States than according to the rules of the common law." This provision, which also applies only to Federal procedure, does not affect proceedings in equity or admiralty. Nor does the clause preclude the conferring by congress on the court of claims the right to determine without a jury claims against the government.3

Jury trial secured in United States courts.

intended to have the same force and effect as the amendment proposed by the states. We cannot agree to a construction which will impose on the exception in the fifth amendment a sense other than that obviously indicated by action of the state conventions."

1 U. S. v. Collins, 2 Curt. C. C. 194; Com. v. Wyatt, 6 Rand. 694; State v. Kearney, 1 Hawks, 53; Garcia v. Territory, 1 New Mex. 415.

2 Whart. Crim. Pl. and Pr., 8th ed., § 921.

3 Pervear v. Com., 5 Wall. 475. As sustaining the text, see James v. Com., 12 S. & R. 220; Foote v. State, 59 Md. 264; 4 Crim. Law Mag., 401. At the time when the expression was first introduced in state and federal

legislation, whipping, so far from being "unusual," was a common mode of punishment.

4 See Metcalf v. Williams, 104 U. S. 93; Mathews v. Tripp, 12 R. I. 256; The J. W. French, 13 Fed. Rep. 916; see supra, § 566.

5 McElrath v. U. S., 102 U. S. 426; as to other limitations see Wynkoop ". Cooch, 89 Penn. St. 450; see, as to limitation in state constitutions, People v. Clark, 23 Hun, N. Y. 374; Swart c. Kimball, 43 Mich. 443; McCampbell r. State, 9 Tex. Ap. 124. That such limitations do not prevent judgments being taken, under statute or rule of court, for want of affidavit of defence, see Lawrance v. Borm, 86 Penn. St. 225; Dortic v. Lockwood, 61 Ga. 293 ;

XXIX. RECONSTRUCTION AND CIVIL RIGHTS

involun

Slavery and tary servihibited expunishment for

tude pro

cept as

crime.

584. The thirteenth amendment, which we have next to consider, was, as has been already noticed, the formal declaration of an organic change of public sentiment. It was felt throughout the land, however great may have been the reluctance in some sections to give expression to the feeling, and however perilous the transmutation might seem to many to be, that, after the war was over, domestic slavery could no longer exist; and at the south the abolition of slavery, no doubt, was recognized as a necessity as fully as at the north.2 As giving formal efficiency to this conviction is to be regarded the thirteenth amendment, the first section of which provides that "neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall be duly convicted, shall exist within the United States, or any place subject to their jurisdiction." By the second section " congress shall have power to enforce this article by appropriate legislation." By this amendment alone are the character and effect of the abolition of slavery in the United States, so far as concerns the Federal government, to be determined. Mr. Lincoln's emancipation proclamation, so far as it went beyond the liberation, as a war measure, of slaves within the Federal lines, was a nullity. It became, therefore, necessary, in order

see Neely v. State, 4 Baxt. 174. In Wall, ex parte, 107 U. S. 265, it was held that summary disbarring of an attorney by a court is not precluded by the above limitations. To the same effect is cited Fields v. State, Mart. & Yerg. 168. It has also been held that cases in the land or naval service are not within this restriction; Mason, ex parte, 105 U. S. 696.

1 Supra, § 20.

2 In the closing chapter of Mr. John Esten Cooke's interesting History of Virginia, a work none the less valuable from the fact that it is written from a distinctively Virginian stand-point, we have the following: "The Virginia

people sincerely rejoice that African slavery is done away with; could not be persuaded to have it restored; and sincerely desire that the race may avail themselves of the system of public education, and become well-informed and respectable members of the community," p. 508.

The amendment prescribing the abolition of slavery was none the less "declaratory," in Burke's sense of the term, because the public sentiment it declared was the necessary consequent of circumstances. Supra, § 27. As to Mr. Lincoln's views in this respect, see infra, 593.

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to emancipate the slaves, not only in the border states, but in those sections of the "confederate" states where, by military action, emancipation had not been already effected, to obtain an amendment to the constitution which should operate throughout the whole Union; and the amendment to this effect, which is now immediately before us, was adopted under circumstances elsewhere stated. The meaning of the amendment, construed, as it is necessary that it should be construed, by the political conditions that preceded it, is plain, so far as concerns the clause in relation to slavery. Slavery, as thus abolished, is the domestic slavery of negroes as it existed in the southern states prior to the war; and this slavery, under the amendment before us, is no longer to exist. More difficult, however, are the questions arising from the words "involuntary servitude." One-fourth of the human race, comprising children under twenty-one years of age, live in a state of "servitude," which is so far involuntary that it cannot be imputed to any originating choice of their own. There are also multitudes of others, dependents of various classes, and weak-minded persons, who are subjected to what may be called "involuntary servitude," not imposed as a punishment on conviction of crime. In order, therefore, to harmonize the term with the adjudications of the courts, we must come to the following conclusions:

(1) The term does not prohibit the servitude of child to parent.3

H. Dana, in an article in the North American Review of February, 1880, p. 133, "the proclamation was never brought to a test. There is little doubt that foreign states and our own judiciary would have treated it as ineffectual." It was agreed in the cabinet, by both Mr. Chase and Mr. Seward, that beyond this limit the president's powers did not go. Ibid. See article by President Welling, North American Review, July, 1880, and supra, § 455. "Nothing short of a constitutional

amendment," says Mr. George W. Julian, one of the prominent actors in the congressional reconstruction movement, "could at once give freedom;

and 'this,' as Mr. Lincoln declared in earnestly urging its adoption, is a king's cure for all evils. It winds the whole thing up.'" Julian's Political Recollections, 1884, p. 228. 1 Supra, §§ 400, 401; infra, § 593. 2 Supra, § 360.

Schouler's Domostic Relations, §§ 245 et seq.

(2) Nor does it prohibit the compelling an apprentice to do service against his will. Such indentures may bind the apprentice after he becomes of full age; but it has never been claimed that such involuntary servitude is an infraction of the constitution.2

(3) Nor does it preclude arrest and imprisonment of debtors in cases where such arrest is authorized by the local law; nor does it prevent their being compelled to do service when imprisoned. Such cases are very numerous. Imprisonment for debt, it is true, has been, as a rule, abolished, but there are still many cases in which an insolvent debtor, who is about to leave the jurisdiction, or is implicated in any fraud, in connection with the indebtedness, may be held to bail, and in default of bail, may be committed to prison, and subjected to all the rules as to service that may be there imposed.3

66

(4) Nor does it prohibit the committal of vagrants or tramps" to workhouses or other asylums where they will be compelled to labor for their own support.*

(5) Nor does it preclude compulsory military service under a conscription. Such service, though shown to be involuntary, has been held to be constitutional."

§ 585. It was not, however, considered sufficient to simply emancipate the negro. To make this emancipation operative

1 In McPeck v. Moore, 51 Vt. 269, S. apprenticed himself to M., to learn a trade, and to do "such other chores and labor, when required, as would be necessary to" M. It was held that under the contract it was the duty of S., at M.'s order, to go into the cellar to repair a drain.

2 See Schouler's Domestic Relations, § 459; Hastings v. Forsyth, 27 Vt. 646. Stone, in re, 129 Mass. 156; Corey v. Miller, 12 R. I. 337; Roberts v. Prosser, 53 N. Y. 260; People v. Tweed, 63 N. Y. 202; Jones v. Platt,, 60 How. N. Y. Pr. 73; Baxter v. Drake, 61 How. N. Y. Pr. 365; Pierson v. Freeman, 77 N. Y. 589; State v. Foote, 83 N. C. 102. That the United States courts make

arrest and "involuntary servitude" for debt either on mesne process or execution depend upon the local law, see Louisiana Ins. Co. v. Nickerson, 2 Low. 310.

Whart. Crim. Law, 8th ed., § 442; Whart. Cr. Pl. and Pr., 80; Crouse, ex parte, 4 Whart. 9; People v. Catholic Protectory, 61 How. N. Y. Pr. 445; Com. v. Keeper of Prison, 2 Ashm. 227 ; Way, in re, 41 Mich. 299; State v. Maxcy, 1 McMul. 501. But a state cannot, it is said, imprison in a house of correction a child who has committed no crime on the ground that he is destitute of proper parental care. People v. Turner, 55 Ill. 280. 5 See supra, § 456.

Citizenship

white and

negro races.

it was held to be essential, in view of the relations and temper which generations of bondage had produced, that confined to citizenship should be formally bestowed on him, and that he should have equal civil rights, so far as concerns freedom from legislative discrimination, with the white race. With this feeling was blended, as we will see hereafter more fully,' the conviction that, irrespective of the race question, the agitation of which would subside as soon as the negro's civil rights were secured, there should be a final constitutional prohibition placed on state legislation discriminating in any respect between persons subject to the law, or depriving any person of any rights without due legal process. To effect these important purposes the fourteenth amendment was proposed. This amendment is as follows:

"SECT. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

"SECT. 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for president and vice-president of the United States, representatives in congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

"SECT. 3. No person shall be a senator or representative in congress, or elector of president and vice-president, or hold any

Infra, § 588.

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