Page images
PDF
EPUB

ever. They are the men, women, and children whose relations to the republic involve the reciprocal duties of loyalty and protection, and, because all persons who are bound and benefited by these duties are equal before the Constitution, they are grouped under a single title.

Citizens of the United States," is merely the equivalent of “British subjects,” and “Frenchmen in this regard, that each describes the national body of the respective states.

Slavery

The first section of the Thirteenth Amendment of the Constitution reads: “Neither slavery nor invol“untary 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.” A whimsical argument against the supremacy

of the Constitution in territory beyond the States is that this Amendment affirms a distinction between “the United States” and this territory, which is alleged to be designated by “any place subject to “their jurisdiction.” This “place” has never been defined judicially. Certainly it includes American ships, and probably American legations abroad, and I think such localities beyond the geographical limits of the republic are the sufficient reason for the clause 1

It may be conceded, however, that know1 Mr. Harrison says: “This Amendment was proposed by Congress on February ist, 1865-the day on which Sherman's army left Savannah on its northern march; and the words “any place

ledge of a debate on slavery, involving the relation of the Constitution to the Territories, may have impelled the framers of the Amendment to place the question beyond even discussion. But, whatever purpose ingenuity may decipher from the phrase, it would be a criminal perversion of the work of the Congress that adopted it, and of the States that ratified it, to thrust into their declaration abolishing negro slavery a denial of constitutional liberty to all Americans who happen to live beyond the States. This Amendment deals with the incident of slavery only. It has no bearing on the broad and distinct subject of the sphere of the Constitution. This is determinable by considerations antedating the Amendment, which, for this reason, can add nothing to the notion that the Constitution is meant for the States alone. For the same reason it can take nothing from the doctrine that the authority of the Constitution is conterminous with the territorial jurisdiction of Congress.

Slavery exists among the Mohammedans in the Philippines, and although these people may be treated as “Indians," and left with a large discretion in the management of their domestic affairs, they are within the purview of this Amendment, which, in fact, has been held to forbid a system of serfdom found among the Indians of Alaska.?

2

subject to their jurisdiction' were probably added because of the uncertainty as to the legal status of the States in rebellion, and not because of any doubt as to whether Nebraska, then a Territory, was a part of the United States.”—North American Review, January, 1901, p. 6.

1 See supra, p. 35.
2 Sah Quah's Case, 31 Federal Rep. 727.

Concerning an agreement made with the Sultan of Sulu by the military authorities, the President says:1 “Article X provides that any slave in the archi“pelago of Jolo shall have the right to purchase free"dom by paying to the master the usual market "value. The agreement by General Bates was made

subject to confirmation by the President, and to “future modifications by the consent of the parties “in interest. I have confirmed said agreement, sub"ject to the action of the Congress, and with the "reservation, which I have directed shall be commu“nicated to the Sultan of Jolo, that this agreement “is not to be deemed in any way to authorize or give “the consent of the United States to the existence "of slavery in the Sulu archipelago. I communicate “these facts to the Congress for its information and " action.” As the article in question purports to accord a qualified recognition of slavery it is outlawed by the Constitution. We may not handle slavery with gloves. The gradual emancipation tolerated by England in Zanzibar is not permitted

There is not even a lawful process of emancipation The Amendment declares sharply that slavery shall not “exist," and the Supreme Court has pronounced it to be “undoubtedly self-executing with“out any ancillary legislation, so far as its terms are applicable to any existing state of circumstances. By its own unaided force and effect it abolished “slavery, and established universal freedom.” 2

The full effect of the prohibition of “involuntary “servitude” has not been determined by the Supreme

to us.

ܙܙ

1 Annual message of 1899, p. 43. 2 Civil Rights Cases, 109 U. S. 3, 20.

[ocr errors]

Court, which has decided, however, that it does not abrogate the ancient rule of the sea whereby a sailor shipping for a voyage may be compelled to perform his contract under pain of imprisonment, nor is intended to introduce “any novel doctrine with respect to certain descriptions of service which have always

been treated as exceptional; such as military and “naval enlistments, or to disturb the right of parents “and guardians to the custody of their minor chil“dren or wards services which have from time “immemorial been treated as exceptional shall “not be regarded as within its purview."1 Nor is it necessary to insist that a person can in no case be compelled to complete a particular undertaking an engineer who should be prevented from wilfully abandoning a pump forcing air into a mine would not be held in “involuntary servitude.” But after making all exceptions warranted by inveterate usage or emergency, the Thirteenth Amendment appears to declare that an employer cannot of his own motion, or by the assistance of the state force an unwilling workman to perform his contract. As Judge Cooley says: “ Contracts for personal services cannot, as a “general rule, be enforced, and application to be discharged from service under them on habeas corpus is evidence that the service is involuntary.” And the Supreme Court has said: “If Mexican “peonage or the Chinese coolie labor system shall

develop slavery of the Mexican or Chinese race « within our territory, this amendment may safely be

1 Robertson v. Baldwin, 165 U. S. 275, 282. 2 Constitutional Limitations, 6th Ed. 363, note.

[ocr errors]

1

“trusted to make it void.” What effect the enforcement of the Thirteenth Amendment against the coolie system would have upon agriculture in some of our new possessions cannot be known until the labor conditions are thoroughly understood. It is noteworthy, however, that Great Britain finds it expedient to legitimate this system in several of her colonies, shorn of most abuses, it is true, yet retaining the essential feature of compulsory service during an agreed period. And in the report on British New Guinea for 1897-98% we read that Ordinance No. II of 1897: "rendered it compulsory “on a native to perform the work for which he may “be duly engaged”; and Ordinance No. VIII of 1897: “provides that a deserting laborer may be re“turned to his employer.” However, in view of the state of labor in Hawaii we are not free, at present, to criticize British policy. In June, 1899, the Supreme Court of Hawaii confirmed the order of a district magistrate who, under the Masters and Servants Act, had sentenced a man to imprisonment at hard labor “until he should consent to return to his “master and consent to serve according to law.” The prisoner was an Austrian who had been “im“ported” by the company under contract to work for three years. The Court did not attempt to distinguish the imprisonment from the “involuntary

» 3

1 Slaughter-house Cases, 16 Wallace 36, 72; cited in U. S. v. Wong Kim Ark, 169 U. S. 649, 677. For a description of peonage see Jaremillo v. Romero, i New Mexico 190.

2 Pages 10, 11. 3 Honomu Sugar Co. v. Zeluch, 60 Albany Law Journal 213.

[ocr errors]
« PreviousContinue »