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not be disturbed unless plainly against the Defendants in error set up by answer two testimony.

defenses: (1) That the original cause was Putting all these things together, we are carried to the supreme court of Florida, and of the opinion that the decree of the circuit there examined upon its merits, and a decourt was right, and it is affirmed.

cree rendered affirming the decree below.

(2) That the wife of the circuit judge had (197 U. S. 197)

died ten years prior to the bringing of that

suit. J. B. CARO et al., Piffs. in Err.,

The petition to vacate the decree was

denied July 13, 1901, by the circuit court, W. H. DAVIDSON et al.

and its decree to that effect was affirmed by

the supreme court, November 17, 1903 (the Error to state court-Federal question-de

case having been submitted March 31, cision by necessary intendment.

1902), whereupon this writ of error was A decision sustaining the validity, under the allowed, and comes before us on a motion

eu posl facto clause of the Federal Consti- to dismiss for want of jurisdiction. tution, 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 Amend. which 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 intendcourts.

ment the validity of an act of the general

assembly of Florida of May 30, 1901, was (No. 196.]

drawn in question as repugnant to the ConSubmitted January 23, 1905. Decided stitution of the United States, and its vaMarch 13, 1905.

lidity sustained. The act referred to pro

vided that S 970 of the Revised Statutes of N ERROR to the Supreme Court of the Florida was thereby amended so as to read:

State of Florida to review a decree “Any and all judgments, decrees, and orders which affirmed a decree of the Circuit Court heretofore or hereafter rendered in causes of Escambia County, in that state, deny- where the disqualifications appear of record ing a petition to vacate certain decrees for in the cause, shall be void; but where the the relationship existing between the judge disqualification does not so appear, they and one of the parties. On motion to dis- shall not be subject to collateral attack.” miss for want of jurisdiction, dismissed. Fla. Sess. Laws, 1901, p. 39. The facts are stated in the opinion.

The contention is that the judgment of the Messrs. H.

H. A. Herbert, Benjamin supreme court proceeded upon this act, Micou, E. 7'. Davis, and Simeon S. Belden which was invalid, if so applied, because eso for plaintiffs in error.

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 deciPlaintiffs in error filed their petition in sion in favor of its validity appeared therethe circuit court of Escambia county, Flor- from, and the judgment might have rested ida, in April, 1901, for the vacation of cer- on grounds not involving its validity. tain interlocutory and final decrees ren- Whether the supreme court of Florida, if dered March 5, 1887, April 4, 1887, and it sustained the decree of the circuit court January 17, 1889, in favor of complainants, in denying the petition on either of the in a certain cause thereinbefore pending, on grounds set up in defense, committed error the ground that the said orders and decrees cognizable here, or whether the act referred were null and void because the judge by to was applied, as asserted, in contravention whom they were entered was the husband of the Constitution of the United States, of the sister of one of the complainants, hav- we are not called on to consider; since we ing at the time living children, the issue do not find that any Federal question was of their marriage, it being also averred that so raised, on the petition or in the proceedthe relationship was not known until Feb- ings thereunder, at the proper time and in ruary, 1901.

the proper way, as to give us jurisdiction


under $ 709 of the Revised Statutes (U.S. ON WRIT of Certiorari to the United Comp. p. Ins. Co. v. McGrew, 188 U. S. 291, 307, 308, 47 Fifth Circuit, bringing up for review a judgL. ed. 480, 485, 23 Sup. Ct. Rep. 375; ment of the Circuit Court for the Northern Powell v. Brunswick County, 150 U. S. 433, District of Florida, convicting defendant of 37 L. ed. 1134, 14 Sup. Ct. Rep. 166; Say returning certain specified persons to a conward v. Denny, 158 U. S. 180, 39 L. ed. dition of peonage, which judgment had been 941, 15 Sup. Ct. Rep. 777.

taken to the Circuit Court of Appeals by a Writ of error dismissed.

writ of error to the Circuit Court. Reversed and the cause remanded for a new

trial, (197 U. S. 207) SAMUEL M. CLYATT

Statement by Mr. Justice Brewer:

Sections 1990 and 5526, Rev. Stat. (U. S. UNITED STATES.

Comp. Stat. 1901, pp. 1266, 3715), read:

“Sec. 1990. The holding of any person to Constitutional lawavalidity of congres

service or labor under the system known as sional legislation against peonage-scope peonage is abolished and forever prohibited of statute-evidence to sustain convic- in the territory of New Mexico, or in any tion-appeal-sufficiency of bill of excep

other territory or state of the United tions.

States; and all acts, laws, resolutions,

orders, regulations, or usages of the terri1. The enactment of the prohibition against tory of New Mexico, or of any other terri

peonage in any state or territory of the tory or state, which have heretofore estabUnited States, contained in U. S. Rev. Stat. lished, maintained, or enforced, or by virtue $$ 1990, 5526 (U. S. Comp. Stat. 1901, pp. of which any attempt shall hereafter be 1266, 3715), was authorized by the pro- made to establish, maintain, or enforce, divisions of 0. s. Const

. 13th Amend., forbid rectly or indirectly, the voluntary or inding slavery or involuntary servitude within the United States or any place subject to voluntary service or labor of any persons their jurisdiction, and granting to Congress as peons, in liquidation of any debt or oblithe power to enforce the prohibition by ap- gation, or otherwise, are declared null and propriate legislation. *

void.” 2. The holding of another in a state of peon- “Sec. 5526. Every person who holds, ar

age, whether sanctioned or not by municipal rests, returns, or causes to be held, arrestor state law, is included in the prohibition against peonage in any state or territory of ed, or returned, or in any manner aids in the United States, contained in U. S. Rev. the arrest or return of any person to a conStat. $$ 1990, 5526 (U. S. Comp. Stat. 1901, dition of peanage, shall be punished by a pp. 1266, 3715, enacted by Congress in the fine of not less than one thousand nor more exercise of its power, under U. S. Const. 13th than five thousand dollars, or by imprisonAmend., to enforce, by appropriate legisla ment not less than one year nor more than tion, the provision of that amendment forbidding slavery or involuntary servitude within five years, or by both." the United States or in any place subject to

On November 21, 1901, the grand jury retheir jurisdiction.

turned into the circuit court of the United 3. Evidence of a prior condition of peonage, to States for the northern district of Florida

which the persons so held were returned by an indictment in two counts, the first of the acts of the defendant, is essential to sup- which is as follows: port a conviction under an indictment charging him with returning certain designated

“The grand jurors of the United States persons to a condition of peonage.

of America impaneled and sworn within and 4. The lack of an affirmative statement in the for the district aforesaid, on their oaths

bill of exceptions, in a criminal case, that it present, that one Samuel M. Clyatt, herecontains all the testimony, is not fatal, where tofore, to wit: on the eleventh day of Febthe recitals in such bill sufficiently show that

ruary, in the year of our Lord one thousand fact. 1

nine hundred and one, in the county of Levy, 6. The failure to request that the jury be in state of Florida, within the district afore

structed to find for the defendant will not
prevent the Federal Supreme Court, in re said, and within the

said, and within the jurisdiction of this viewing a conviction of crime, from exam-court, did then and there unlawfully and ining the record to see if there was any knowingly return one Will Gordon and one proof of a material element of the crime Mose Ridley to a condition of peonage, by charged.

forcibly and against the will of them, the

said Will Gordon and the said Mose Ridley, [No. 235.]

returning them, the said Will Gordon

and Mose Ridley, to work to and for Argued December 13, 14, 1904. Decided Samuel M. Clyatt, D. T. Clyatt, and March 13, 1905.

H. H. Tift, copartners doing

doing business *Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Civil Rights, $ 1; vol. 10, Cent. Dig. Consti. tutional 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. We need not stop to consider any Tift, to be held by them, the said Clyatt & possible limits or exceptional cases, such Tift, to work out a debt claimed to be due as the service of a sailor (Robertson v. to them, the said Clyatt & Tift, by the said Balduin, 165 U.

Baldwin, 165 U. S. 275, 41 L. ed. 715, 17 Will Gordon and Mose Ridley; contrary to Sup. Ct. Rep. 326), or the obligations of a the form of the statute in such case made child to its parents, or of an apprentice to and provided, and against the peace and his master, or the power of the legislature dignity of the United States."

to make unlawful, and punish criminally, The second count differs only in charging an abandonment by an employee of his post that defendant caused and aided in return- of labor in any extreme cases. That which ing Gordon and Ridley. A trial resulted in is contemplated by the statute is compul- . a verdict of guilty, and thereupon the de- sory service to secure the payment of a fendant was sentenced to confinement at debt.

debt. Is this legislation within the power hard labor for four years. The case was of Congress? It may be conceded, as a gentaken on appropriate writ to the court of eral proposition, that the ordinary relations appeals for the fifth circuit, which certified of individual to individual are subject to to this court three questions. Subsequently the control of the states, and are not inthe entire record was brought here on a trusted to the general government; but the writ of certiorari, and the case was heard 13th Amendment, adopted as an outcome of on its merits.

the Civil War, reads:

“Sec. 1. Neither slavery nor involuntary Messrs. William G. Brantley, A. O. Bacon, and w. M. Hammond for Clyatt. servitude, except as a punishment for crime

Attorney General Moody and Assistant whereof the party shall have been duly Attorney General Purdy for the United convicted, shall exist within the United

States, or any place subject to their jurisStates.

diction. Mr. Justice Brewer delivered the opin- “Sec. 2. Congress shall have power to enion of the court:

force this article by appropriate legislaThe constitutionality and scope of 98 1990 tion." 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, basedbitions 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 power to enforce this prohibition by approwere indebted to their masters. This was priate legislation. The differences between the cord by which they seemed bound to the 13th and subsequent amendments have their master's service.” Upon this is based been so fully considered by this court that a condition of compulsory service. Peonage it is enough to refer to the decisions. In is sometimes classified as voluntary or in- | the Civil Rights Cases, 109 U. S. 3, 20, 23, voluntary; but this implies simply a dif- 27 L. ed. 835, 842, 843, 3 Sup. Ct. Rep. 18, . ference in the mode of origin, but none in 28, 30, Mr. Justice Bradley, delivering the the character of the servitude. The one opinion of the court, uses this language: exists where the debtor voluntarily con- “This amendment, as well as the 14th, is tracts to enter the service of his creditor. undoubtedly self-executing without any anThe other is forced upon the debtor by some cillary legislation, so far as its terms are provision of law. But peonage, however applicable to any existing state of circumcreated, is compulsory service,-involun- stances. By its own unaided force and eftary servitude. The peon can release him- fect it abolished' slavery, and established self therefrom, it is true, by the payment universal freedom. Still, legislation may be of the debt, but otherwise the service is en necessary and proper to meet all the variforced. A clear distinction exists between ous cases and circumstances to be affected peonage and the voluntary performance of by it, and to prescribe proper modes of relabor or rendering of services in payment dress for its 'violation in letter or spirit. of a debt. In the latter case the debtor, And such legislation may be primary and though contracting to pay his indebtedness direct in its character; for the amendment by labor or service, and subject, like any is not a mere prohibition of state laws esother contractor, to an action for damages tablishing or upholding slavery, but an abfor breach of that contract, can elect at any solute declaration that slavery or involuntime to break it, and no law or force com- tary servitude shall not exist in any part pels performance or a continuance of the 'of the United States.

“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 the exercise of that power Congress has enslavery: the latter prohibited the states acted these sections denouncing peonage, from abridging the privileges or immunities and punishing one who holds another in of citizens of the United States; from de- that condition of involuntary servitude. priving them of life, liberty, or property This legislation is not limited to the terriwithout due process of law, and from deny- tories or other parts of the strictly naing to any the equal protection of the laws. tional domain, but is operative in the states The amendments are different, and the pow- and wherever the sovereignty of the United ers of Congress under them are different. States extends. We entertain no doubt of What Congress has power to do under one, the validity of this legislation, or its apit may not have power to do under the plicability to the case of any person holdother. Under the 13th Amendment, it has ing another in a state of peonage, and this only to do with slavery and its incidents. whether there be a municipal ordinance or Under the 14th Amendment, it has power state law sanctioning such holding. It to counteract and render nugatory all state operates directly on every citizen of the Relaws and proceedings which have the effect public, wherever his residence may be. to abridge any of the privileges or im- Section 5526 punishes "every person who munities of citizens of the United States, holds, arrests, returns, or causes to be held, or to deprive them of life, liberty, or prop- arrested, or returned.” Three distinct acts erty without due process of law, or to deny are here mentioned,—holding, arresting, reto any of them the equal protection of the turning. The disjunctive “or” indicates the laws. Under the 13th Amendment, the leg- separation between them, and shows that islation, so far as necessary or proper to either one may be the subject of indictment eradicate all forms and incidents of slavery and punishment. A party may hold anand involuntary servitude, may be direct other in a state of peonage without ever and primary, operating upon the acts of in- having arrested him for that purpose. He dividuals, whether sanctioned by state leg- may come by inheritance into the possession islation or not; under the 14th, as we have of an estate in which the peon is held, and already shown, it must necessarily be, and he simply continues the condition which was can only be, corrective in its character, ad existing before he came into possession. He dressed to counteract and afford relief may also arrest an individual for the puragainst state regulations or proceedings.” pose of placing him in a condition of peonage,

In Plessy v. Ferguson, 163 U. S. 537, 542, and this whether he be the one to whom the 41 L. ed. 256, 257, 16 Sup. Ct. Rep. 1138, involuntary service is to be rendered or sim1140, Mr. Justice Brown, delivering the ply employed for the purpose of making the opinion of the court, said;

arrest. Or he may, after one has fled from “That it does not conflict with the 13th a state of peonage, return him to it, and Amendment, which abolished slavery and in this whether he himseif claims the service voluntary servitude except as a punishment or is acting simply as an agent of another for crime, is too clear for argument. Slav- to enforce the return. ery implies involuntary servitude,-a state The indictment charges that the defendof bondage; the ownership of mankind as ant did "unlawfully and knowingly return a chattel, or at least the control of the labor one Will Gordon and one Mose Ridley to a and services of one man for the benefit of condition of peonage, by forcibly, and another, and the absence of a legal right against the will of them, the said Will to the disposal of his own person, property, Gordon and the said Mose Ridley, returning and services. This amendment was said in them, the said Will Gordon and the said the Slaughter House Cases, 16 Wall. 36, Mose Ridley, to work to and for Samuel M. 21 L. ed. 394, to have been intended pri- Clyatt.” marily to abolish slavery, as it had been Now a "return” implies the prior existpreviously known in this country, and that ence of some state or condition. Webster it equally forbade Mexican peonage or the defines it “to turn back; to go or come again Chinese coolie trade, when they amounted to the same place or condition." In the to slavery or involuntary servitude, and Standard dictionary it is defined “to cause that the use of the word 'servitude' was in to take again a former position; put, carry, tended to prohibit the use of all forms of or send back, as to a former place or holdinvoluntary slavery, of whatever class or er. A technical meaning in the law is name.”

thus given in Black's Law Dictionary: “The Other authorities to the same effect might act of a sheriff, constable, or other minisbe cited. It is not open to doubt that Con- terial officer, in delivering back to the court gress may enforce the 13th Amendment by a writ, notice, or other paper." direct legislation, punishing the holding of 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 peon- tions should be taken as containing all the age, to which, by the act of the defendant, evidence. It appears that as soon as the they were returned. We are not at liberty jury was sworn to try the issues in the to transform this indictment into one cause 'the complainants, to sustain the charging that the defendant held them in issues on their part, offered the following a condition or state of peonage, or that he oral and documentary evidence.' Then fol. arrested them with a view of placing them low many pages of testimony on the part in such condition or state. The pleader of the plaintiff's, when this entry appears: has seen fit to charge a return to a condi- 'Whereupon complainants rested.' Immetion of peonage. The defendant had a right diately after comes this entry: 'Thereupon to rely upon that as the charge, and to the defendants, to sustain the issues herein either offer testimony to show that Gordon joined on their part, produced the following and Ridley had never been in a condition of evidence.' Then follow many pages of evipeonage, or to rest upon the government's dence given on behalf of the defendant, and omission of proof of that fact.

the evidence of a witness recalled by the We must, therefore, examine the testi- defendant, concluding with this entry: mony; and the first question that arises is 'Whereupon the further proceedings herein whether the record sufficiently shows that were continued until the 20th day of May, it contains all the testimony. The bill of 1896, at 10 o'clock A. M. Immediately fol. exceptions, after reciting the impaneling of lowing this entry: 'Wednesday, May 20th, the jury, proceeds in these words:

at 10 o'clock, the further trial of this “And thereupon the plaintiff, to maintain cause was continued as follows. The tranthe issues upon its part, produced and script next shows some discussion by counsel offered as a witness, James R. Dean, who, as to the exclusion of particular evidence, being first duly sworn, did testify as fol. after which is this entry: 'Thereupon counlows."

sel for defendant made a formal motion That recital is followed by what purports under the evidence on both sides that the to be the testimony of the witness. Then court instruct the jury to return a verdict follows in succession the testimony of sev- for the defendant.' Although the bill of ex. eral witnesses, each being preceded by a ceptions does not state, in words, that it statement in a form similar to this: "The contains all the evidence, the above entries plaintiff then introduced and offered as a sufficiently show that it does contain all witness, H. S. Sutton, who, being first duly the evidence.” sworn, did testify as follows.” At the close The present case is completely covered by of the testimony of the last witness named that decision. If, in a civil case, such reis this statement:

citals in the bill of exceptions are sufficient “Whereupon the plaintiff rests its case. to show that it contains all the testimony,

Defendant rests-introduces no testi- a fortiori should this be the rule in a crimmony.

inal case, and the defendant therein should "And the said judge, after charging the not be deprived of a full consideration of jury on the law in the case, submitted the the question of his guilt by an omission from said issues and the evidence so given on the the bill of the technical recital that it contrial, to the jury, and the jury aforesaid tains all the evidence. then and there gave their verdict for the While no motion or request was made that plaintiff.”

the jury be instructed to find for defendant, It is true there is no affirmative state and although such a motion is the proper ment in the bill of exceptions that it con- method of presenting the question whether tains all the testimony, but such omission there is evidence to sustain the verdict, yet is not fatal. This question was presented Wiborg v. United States, 163 U. S. 632, 658, in Gunnison County v. E. H. Rollins & Sons, 41 L. ed. 290, 298, 16 Sup. Ct. Rep. 1127, 173 U. S. 255, 43 L. ed. 689, 19 Sup. Ct. 1197, justifies us in examining the question Rep. 390, a civil case, brought to this court in case a plain error has been committed in on certiorari to the circuit court of appeals, a matter so vital to the defendant. which court had held that the bill of ex- The testimony discloses that the defendceptions did not purport to contain all the ant. with another party, went to Florida, evidence adduced at the trial, and for that and caused the arrest of Gordon and Ridreason did not consider the question whether ley on warrants issued by a magistrate in error was committed in instructing the Georgia for larceny; but there can be little jury to find for the defendant. Mr. Justice doubt that these criminal proceedings were Harlan, delivering the unanimous opinion only an excuse for securing the custody of of the court, disposed of that question in Gordon and Ridley, and taking them back these words (p. 261, L. ed. p. 693, Sup. Ct. to Georgia to work out a debt. At any rate, Rep. p. 392):

there was abundant testimony from which

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