from the free states. In the famous Dred Scott case a majority of the Supreme Court of the United States were of the opinion, though this was not necessary to the decision of the case, that the Missouri Compromise act was unconstitutional in so far as it forbade slave owners from taking their slaves into the territories of the United States. Congress being forbidden to take property without due process of law, it was reasoned that a slave owner was as much entitled to be protected in his slave property in the territories, as if he were the owner of a wagon and mules (1). The Civil war speedily followed, and its first constitutional fruit was the enactment of the Thirteenth Amendment, which prohibited slavery or involuntary servitude, except as a punishment for persons convicted of crime, within the United States or any place subject to their jurisdiction. This amendment became effective December 18, 1865. See §69, above. Compulsory service § 102. What constitutes slavery? of sailor. There have been few cases judicially construing this amendment. In Robertson v. Baldwin (2), in 1897, the question arose whether a seaman who had voluntarily agreed to complete a voyage could be constitutionally compelled to return to his ship against his will before the completion of the voyage. The question was thus stated by the court: "Does the epithet 'involuntary' attach to the word 'servitude' continuously, and make illegal any service which becomes involuntary at any time during its exis tence; or does it attach only at the inception of the servitude, and characterize it as unlawful because unlawfully entered into? The prohibition of slavery in the Thirteenth Amendment is well known to have been adopted with reference to a state of affairs which had existed in certain states of the Union since the foundation of the government, while the addition of the words 'involuntary servitude' were said in the Slaughterhouse cases, 16 Wall. 36, to have been intended to cover the system of Mexican peonage and the Chinese coolie trade, the practical operation of which might have been a revival of the institution of slavery under a different and less offensive name. It is clear, however, that the amendment was not 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 children or wards." The court then showed that the contract of a sailor had always been treated as exceptional and the sailor compellable not to desert during the continuance of the voyage, and therefore decided the Thirteenth Amendment did not apply. § 103. Same: Compulsory service to discharge debt. In Clyatt v. United States (3), the question was considered whether the Thirteenth Amendment applied to the compulsory enforcement of a person's agreement to (3) 197 U. S. 207. render service in the discharge of a debt, sometimes called peonage. The court said: "What is peonage? It may be defined as a status or condition of compulsory service, based upon the indebtedness of the peon to the master. 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. 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 service. We need not stop to consider any possible limits or exceptional cases, such as the service of a sailor, 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 employe of his post of labor in any extreme cases." The court therefore held such involuntary service to be slavery and forbidden by the Constitution. § 104. Same: Imprisonment for breach of labor contract. Recently South Carolina passed a statute punishing by fine and imprisonment any one who wilfully and without just cause broke a contract to labor on farm land. The Federal district court in South Carolina held this was substantially the same as peonage, because compelling the laborer, under penalty of imprisonment, to continue in involuntary servitude (4). The United States Supreme Court later decided in a case from Alabama that the breach of a contract to render personal service may not be made criminal without violating the Thirteenth Amendment (4a). § 105. Religious liberty. "Congress shall make no law respecting an establishment of religion, or prohibit the free exercise thereof" (5). A similar provision is found in most of the state constitutions. These prohibitions do not forbid laws regarding the observance of Sunday, punishing blasphemy, or forbidding polygamy, although the latter may be alleged to be a religious observance (6). Legislation reasonably designed to promote the peace, good order, and morals of society is not invalid because it interferes with the external acts of a religious society. Reading the Bible in the public schools, without sectarian comment, is usually held not to be a violation of the religious liberty clause of American constitutions, though particular state constitutions may be so strictly drawn as impliedly to forbid even this (7). (4) Ex parte Drayton, 153 Fed. 986 (6) Reynolds v. United States, 98 U. S. 163. (7) See People v. Bd. of Education, 245 Ill. 334. CHAPTER VI. PROTECTION TO PERSONS ACCUSED OF CRIME. § 106. Introduction. A considerable number of provisions in the bills of rights of both Federal and state constitutions are designed to afford protection to persons accused of crime. Today we are so familiar with the difficulty of successfully convicting persons charged with serious crime that it is hard to realize that there was a time when alleged criminals found difficulty in securing fair treatment from the government. The elaborate safeguards provided by our constitutions for such persons are due historically to the operation of at least three different circumstances. In the first place, the procedure of the early English criminal law was harsh and oppressive to the defendant. In the second place, a large proportion of all crimes, even of a trivial nature, were punishable by death. Stealing property above the value of five shillings was thus punishable in England into the early part of the nineteenth century. In the third place, the criminal law was often oppressively used by the English government in securing the conviction of its opponents for political crime. When our early constitutions were formed, the abuses and rigor of the English criminal law were fresh in the minds of American statesmen and they sought to prevent the re-occurrence of such things in this country. Vol. XII-8 |