not be disturbed unless plainly against the testimony.

Putting all these things together, we are of the opinion that the decree of the circuit court was right, and it is affirmed.

(197 U. S. 197)

J. B. CARO et al., Plffs. in Err.,

v.

W. H. DAVIDSON et al.

Error to state court-Federal question-decision by necessary intendment.

Defendants in error set up by answer two defenses: (1) That the original cause was carried to the supreme court of Florida, and there examined upon its merits, and a decree rendered affirming the decree below. (2) That the wife of the circuit judge had died ten years prior to the bringing of that suit.

The petition to vacate the decree was denied July 13, 1901, by the circuit court, and its decree to that effect was affirmed by the supreme court, November 17, 1903 (the case having been submitted March 31, 1902), whereupon this writ of error was allowed, and comes before us on a motion to dismiss for want of jurisdiction.

A decision sustaining the validity, under the ex post facto clause of the Federal Constitution, of Fla. act of May 30, 1901, amend- The state supreme court delivered no ing Fla. Rev. Stat. § 970, so as to prevent opinion in affirming the decree denying the collateral attack of a judgment for a dis- petition to vacate, and the record discloses qualification which does not appear of record in the cause, is not so necessarily involved no title, right, privilege, or immunity spein the denial by the highest state court of a cially set up or claimed under the Constitupetition to vacate a decree entered before tion or any law of the United States, which the amendment, for the relationship existing was denied by the decision; nor any asserbetween the judges and one of the parties, tion of an infraction of the 14th Amendwhich was not known at the time, as to sus-ment, or any provision of the Constitution. tain the exercise by the Federal Supreme Court of its appellate jurisdiction over state But it is said that, by necessary intendment the validity of an act of the general assembly of Florida of May 30, 1901, was drawn in question as repugnant to the Con

courts.

[No. 196.]

Submitted January 23, 1905. Decided stitution of the United States, and its va

I'

March 13, 1905.

N ERROR to the Supreme Court of the State of Florida to review a decree which affirmed a decree of the Circuit Court of Escambia County, in that state, denying a petition to vacate certain decrees for the relationship existing between the judge and one of the parties. On motion to dismiss for want of jurisdiction, dismissed.

The facts are stated in the opinion. Messrs. H. A. Herbert, Benjamin Micou, E. T'. Davis, and Simeon S. Belden for plaintiffs in error.

lidity sustained. The act referred to provided that § 970 of the Revised Statutes of Florida was thereby amended so as to read: "Any and all judgments, decrees, and orders heretofore or hereafter rendered in causes where the disqualifications appear of record in the cause, shall be void; but where the disqualification does not so appear, they shall not be subject to collateral attack." Fla. Sess. Laws, 1901, p. 39.

The contention is that the judgment of the supreme court proceeded upon this act, which was invalid, if so applied, because ex post facto, and that, therefore, this court Messrs. William A. Blount and A. C. has jurisdiction, inasmuch as the validity Blount, Jr., for defendants in error.

of the act was thus drawn in question, and its validity sustained. Yet no definite issue Mr. Chief Justice Fuller delivered the as to the validity of that statute was disopinion of the court:

tinctly deducible from the record, no decision in favor of its validity appeared therefrom, and the judgment might have rested on grounds not involving its validity.

Plaintiffs in error filed their petition in the circuit court of Escambia county, Florida, in April, 1901, for the vacation of certain interlocutory and final decrees rendered March 5, 1887, April 4, 1887, and January 17, 1889, in favor of complainants, in a certain cause thereinbefore pending, on the ground that the said orders and decrees were null and void because the judge by whom they were entered was the husband of the sister of one of the complainants, having at the time living children, the issue of their marriage, it being also averred that the relationship was not known until Feb-ings thereunder, at the proper time and in ruary, 1901.

Whether the supreme court of Florida, if it sustained the decree of the circuit court in denying the petition on either of the grounds set up in defense, committed error cognizable here, or whether the act referred to was applied, as asserted, in contravention of the Constitution of the United States, we are not called on to consider; since we do not find that any Federal question was so raised, on the petition or in the proceed

the proper way, as to give us jurisdiction

under & 709 of the Revised Statutes (U.S.ON WRIT of Certiorari to the United

Argued December 13, 14, 1904. Decided Samuel M. Clyatt, D. T. Clyatt, and

*Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Civil Rights, § 1; vol. 10, Cent. Dig. Constitutional Law, §§ 149, 150; vol. 44, Cent. Dig. Slaves, § 113.

+Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Criminal Law, § 2939.

under the firm name and style of Clyatt & | service.
Tift, to be held by them, the said Clyatt &
Tift, to work out a debt claimed to be due
to them, the said Clyatt & Tift, by the said
Will Gordon and Mose Ridley; contrary to
the form of the statute in such case made
and provided, and against the peace and
dignity of the United States."

The second count differs only in charging that defendant caused and aided in returning Gordon and Ridley. A trial resulted in a verdict of guilty, and thereupon the defendant was sentenced to confinement at hard labor for four years. The case was taken on appropriate writ to the court of appeals for the fifth circuit, which certified to this court three questions. Subsequently the entire record was brought here on a writ of certiorari, and the case was heard on its merits.

Messrs. William G. Brantley, A. O.

Bacon, and W. M. Hammond for Clyatt.
Attorney General Moody and Assistant
Attorney General Purdy for the United

States.

Mr. Justice Brewer delivered the opinion of the court:

We need not stop to consider any possible limits or exceptional cases, such as the service of a sailor (Robertson v. Baldwin, 165 U. S. 275, 41 L. ed. 715, 17 Sup. Ct. Rep. 326), or the obligations of a child to its parents, or of an apprentice to his master, or the power of the legislature to make unlawful, and punish criminally, an abandonment by an employee of his post of labor in any extreme cases. That which is contemplated by the statute is compulsory service to secure the payment of a debt. Is this legislation within the power of Congress? It may be conceded, as a general proposition, that the ordinary relations of individual to individual are subject to the control of the states, and are not intrusted to the general government; but the 13th Amendment, adopted as an outcome of the Civil War, reads:

"Sec. 1. Neither slavery nor involuntary whereof the party shall have been duly servitude, except as a punishment for crime 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 constitutionality and scope of §§ 1990 and 5526 present the first questions for our This amendment denounces a status or consideration. They prohibit peonage. What condition, irrespective of the manner or auis peonage? It may be defined as a status thority by which it is created. The prohior condition of compulsory service, based bitions of the 14th and 15th Amendments upon the indebtedness of the peon to the are largely upon the acts of the states; but master. The basal fact is indebtedness. As the 13th Amendment names no party or ausaid by Judge Benedict, delivering the opin-thority, but simply forbids slavery and inion in Juremillo v. Romero, 1 N. M. 190, voluntary servitude, grants to Congress 194: "One fact existed universally: all were indebted to their masters. This was the cord by which they seemed bound to their master's service." Upon this is based a condition of compulsory service. Peonage is sometimes classified as voluntary or involuntary; but this implies simply a difference in the mode of origin, but none in the character of the servitude. The one exists where the debtor voluntarily contracts to enter the service of his creditor. The other is forced upon the debtor by some provision of law. But peonage, however created, is compulsory service,-involuntary servitude. The peon can release himself therefrom, it is true, by the payment of the debt, but otherwise the service is enforced. A clear distinction exists between peonage and the voluntary performance of labor or rendering of services in payment of a debt. In the latter case the debtor, though contracting to pay his indebtedness by labor or service, and subject, like any other contractor, to an action for damages for breach of that contract, can elect at any time to break it, and no law or force compels performance or a continuance of the

power to enforce this prohibition by appropriate legislation. The differences between the 13th and subsequent amendments have been so fully considered by this court that it is enough to refer to the decisions. In the Civil Rights Cases, 109 U. S. 3, 20, 23, 27 L. ed. 835, 842, 843, 3 Sup. Ct. Rep. 18, . 28, 30, Mr. Justice Bradley, delivering the opinion of the court, uses this language:

"This amendment, as well as the 14th, is undoubtedly self-executing without 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. 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.

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 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 a municipal ordinance or state law sanctioning such holding. It operates directly on every citizen of the Republic, wherever his residence may be.

"We must not forget that the province a person in slavery or in involuntary serviand scope of the 13th and 14th Amendments tude except as a punishment for crime. In are different; the former simply abolished slavery: the latter prohibited the states from abridging the privileges or immunities of citizens of the United States; from depriving them of life, liberty, or property without due process of law, and 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 13th Amendment, it has only to do with slavery and its incidents. Under the 14th 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 13th 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 14th, 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." In Plessy v. Ferguson, 163 U. S. 537, 542, 41 L. ed. 256, 257, 16 Sup. Ct. Rep. 1138, 1140, Mr. Justice Brown, delivering the opinion of the court, said;

"That it does not conflict with the 13th Amendment, which abolished slavery and involuntary servitude except as a punishment for crime, is too clear for argument. Slavery implies involuntary servitude, a state of bondage; the ownership of mankind as a chattel, or at least the control of the labor and services of one man for the benefit of another, and the absence of a legal right to the disposal of his own person, property, and services. This amendment was said in the Slaughter House Cases, 16 Wall. 36, 21 L. ed. 394, to have been intended primarily to abolish slavery, as it had been previously known in this country, and that it equally forbade Mexican peonage or the Chinese coolie trade, when they amounted to slavery or involuntary servitude, and that the use of the word 'servitude' was intended to prohibit the use of all forms of involuntary slavery, of whatever class or name."

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

Section 5526 punishes "every person who holds, arrests, returns, or causes to be held, arrested, or returned." Three distinct acts are here mentioned,-holding, arresting, returning. The disjunctive "or" indicates the separation between them, and shows that either one may be the subject of indictment and punishment. A party may hold another in a state of peonage without ever having arrested him for that purpose. He may come by inheritance into the possession of an estate in which the peon is held, and he simply continues the condition which was existing before he came into possession. He may also arrest an individual for the purpose of placing him in a condition of peonage, and this whether he be the one to whom the involuntary service is to be rendered or simply employed for the purpose of making the arrest. Or he may, after one has fled from a state of peonage, return him to it, and this whether he himself claims the service or is acting simply as an agent of another to enforce the return.

The indictment charges that the defendant did "unlawfully and knowingly return one Will Gordon and one Mose Ridley to a condition of peonage, by forcibly, and against the will of them, the said Will Gordon and the said Mose Ridley, returning them, the said Will Gordon and the said Mose Ridley, to work to and for Samuel M. Clyatt."

Now a "return" implies the prior existence of some state or condition. Webster defines it "to turn back; to go or come again to the same place or condition." In the Standard dictionary it is defined "to cause to take again a former position; put, carry, or send back, as to a former place or holder." A technical meaning in the law is thus given in Black's Law Dictionary: "The act of a sheriff, constable, or other ministerial officer, in delivering back to the court a writ, notice, or other paper."

It was essential, therefore, under the

charge in this case, to show that Gordon "We are of opinion that the bill of excepand Ridley had been in a condition of peonage, to which, by the act of the defendant, they were returned. We are not at liberty to transform this indictment into one charging that the defendant held them in a condition or state of peonage, or that he arrested them with a view of placing them in such condition or state. The pleader has seen fit to charge a return to a condition of peonage. The defendant had a right to rely upon that as the charge, and to either offer testimony to show that Gordon and Ridley had never been in a condition of peonage, or to rest upon the government's omission of proof of that fact.

We must, therefore, examine the testimony; and the first question that arises is whether the record sufficiently shows that it contains all the testimony. The bill of exceptions, after reciting the impaneling of the jury, proceeds in these words:

"And thereupon the plaintiff, to maintain the issues upon its part, produced and offered as a witness, James R. Dean, who, being first duly sworn, did testify as follows."

That recital is followed by what purports to be the testimony of the witness. Then follows in succession the testimony of several witnesses, each being preceded by a statement in a form similar to this: "The plaintiff then introduced and offered as a witness, H. S. Sutton, who, being first duly sworn, did testify as follows." At the close of the testimony of the last witness named is this statement:

"Whereupon the plaintiff rests its case.
"Defendant rests-introduces no testi-

mony.

"And the said judge, after charging the jury on the law in the case, submitted the said issues and the evidence so given on the trial, to the jury, and the jury aforesaid then and there gave their verdict for the plaintiff."

It is true there is no affirmative statement in the bill of exceptions that it contains all the testimony, but such omission is not fatal. This question was presented in Gunnison County v. E. H. Rollins & Sons, 173 U. S. 255, 43 L. ed. 689, 19 Sup. Ct. Rep. 390, a civil case, brought to this court on certiorari to the circuit court of appeals, which court had held that the bill of exceptions did not purport to contain all the evidence adduced at the trial, and for that reason did not consider the question whether error was committed in instructing the jury to find for the defendant. Mr. Justice Harlan, delivering the unanimous opinion of the court, disposed of that question in these words (p. 261, L. ed. p. 693, Sup. Ct. Rep. p. 392):

tions should be taken as containing all the
evidence. It appears that as soon as the
jury was sworn to try the issues in the
cause 'the complainants, to sustain the
issues on their part, offered the following
oral and documentary evidence.' Then fol-
low many pages of testimony on the part
of the plaintiff's, when this entry appears:
'Whereupon complainants rested.' Imme-
diately after comes this entry: "Thereupon
the defendants, to sustain the issues herein
joined on their part, produced the following
evidence.' Then follow many pages of evi-
dence given on behalf of the defendant, and
the evidence of a witness recalled by the
defendant, concluding with this entry:
'Whereupon the further proceedings herein
were continued until the 20th day of May,
1896, at 10 o'clock A. M.' Immediately fol-
lowing this entry: 'Wednesday, May 20th,
at 10 o'clock, the further trial of this
cause was continued as follows.' The tran-
script next shows some discussion by counsel
as to the exclusion of particular evidence,
after which is this entry: "Thereupon coun-
sel for defendant made a formal motion
under the evidence on both sides that the
court instruct the jury to return a verdict
for the defendant.' Although the bill of ex-
ceptions does not state, in words, that it
contains all the evidence, the above entries
sufficiently show that it does contain all
the evidence."

The present case is completely covered by that decision. If, in a civil case, such recitals in the bill of exceptions are sufficient to show that it contains all the testimony, a fortiori should this be the rule in a criminal case, and the defendant therein should not be deprived of a full consideration of the question of his guilt by an omission from the bill of the technical recital that it contains all the evidence.

While no motion or request was made that the jury be instructed to find for defendant, and although such a motion is the proper method of presenting the question whether there is evidence to sustain the verdict, yet Wiborg v. United States, 163 U. S. 632, 658, 41 L. ed. 290, 298, 16 Sup. Ct. Rep. 1127, 1197, justifies us in examining the question in case a plain error has been committed in a matter so vital to the defendant.

The testimony discloses that the defendant. with another party, went to Florida, and caused the arrest of Gordon and Ridley on warrants issued by a magistrate in Georgia for larceny; but there can be little doubt that these criminal proceedings were only an excuse for securing the custody of Gordon and Ridley, and taking them back to Georgia to work out a debt. At any rate, there was abundant testimony from which