regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed."

The quartering of troops

The provision of the Third Amendment that "no soldier shall in time of peace, be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law," requires little explanation, and has received practically none by the Supreme Court.

Slavery and involuntary servitude

The prohibition of the Thirteenth Amendment is absolute upon both the States and the Federal Government that "neither slavery nor involuntary 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."

By § 2 of the Amendment Congress is given the power to enforce this provision by appropriate legislation.

It is to be observed that whereas the Fourteenth Amendment has for its aim the protection of citizens against action on the part of the States, and that, therefore, the legislative power of Congress under its enforcement clause. is limited to the prevention or punishment of the prohibited acts on the part of the States, the Thirteenth Amendment absolutely prohibits the existence of the institution or fact of slavery or involuntary servitude, and the enforcement clause, therefore, gives to the General Government the power to punish the individual or individuals, whether private persons or State officials who hold, or attempt to hold, anyone in slavery or involuntary servitude.

Pursuant to the power thus given Congress has, by various acts, declared criminal and provided punish

ment for those persons violating the constitutional provision. 54

This legislative power of Congress does not, however, extend to the prohibition and punishment of those acts which do not themselves amount to a holding of one in slavery or involuntary servitude, but are acts which infringe the freedom of another. Thus in Hodges v. United States55 was sustained a demurrer to an indictment in a Federal court, on the ground of lack of jurisdiction, which indictment charged the accused with compelling certain negro citizens, by intimidation and force, to desist from performing contracts of employment.

To the argument that one of the indicia of slavery is the lack of power to make or perform contracts, and that by the acts of the accused this disability had been brought about and the negroes thus pro tanto reduced to a condition of slavery, the court replied that practically every wrong done to another has this result, and to concede the claim of counsel would be to place the punishment of all acts of personal wrong or duress within the power of the Federal Government.

Involuntary servitude: Peonage

The Thirteenth Amendment had, of course, for its chief purpose, the abolition of negro slavery. But this was not the sole purpose. Its terms were purposely made broad énough to exclude not only the slavery of any person, whatever his race or color, but his involuntary servitude save as a punishment for crime. It has thus become necessary

54 See Chapter 10, Act of March 4, 1909, codifying, revising and amending the Federal laws of the United States. 35 Stat. at L. 1138. As to the direct legislative power of Congress under the Thirteenth Amendment, see Clyatt v. United States, 197 U. S. 207; 25 Sup. Ct. Rep. 429; 49 L. ed. 726. Also, Civil Rights Cases, 109 U. S. 3; 3 Sup. Ct. Rep. 18; 27 L. ed. 835.

55 203 U. S. 1; 27 Sup. Ct. Rep. 6; 51 L. ed. 65.

for the courts to pass upon the constitutionality of various forms of compulsory service which, while not amounting to slavery, have been alleged to constitute involuntary servitude or peonage.

56

The Thirteenth Amendment renders unenforcible contracts for personal services, suits for damages in cases of breaches of such contracts being the only remedy left the ones to whom such services have been promised. A more doubtful question is as to the power of the States or the United States to provide punishment for the breach of contracts for personal services. Various cases have been decided in the State and Federal courts with reference to this point. In general it may be said that the doctrine is established that statutes making criminal the mere breach of contract is void as in violation of the amendment; but that where such breach involves deliberate fraud, as for example, where prepayment for the services has been made and received, the law will be sustained, even though the effort, by intimidation, may be to compel the performance of the promised services. 57

56 In Slaughter House Cases, 16 Wall. 36; 21 L. ed. 394, it was held that servitude, though having a broader meaning than slavery, did not include the obligation to resort to a given corporation for the slaughtering of live stock, the obligation being imposed as an exercise of the State's police power. In the Civil Rights Cases, 109 U. S. 3; 3 Sup. Ct. Rep. 18; 27 L. ed. 835, it was held that the denial to a person of admission to inns, theaters, public conveyances, etc., did not amount to involuntary servitude or "tend to fasten upon him any badge of slavery." In Plessy v. Ferguson, 163 U. S. 537; 16 Sup. Ct. Rep. 1138; 41 L. ed. 256, a State law requiring separate accommodations for white and colored persons was declared not within the prohibitions of the amendment. In Robertson v. Baldwin, 165 U. S. 275; 17 Sup. Ct. Rep. 326; 41 L. ed. 715, certain provisions of Federal law providing for the arrest and return of deserting seamen, was held beyond the prohibitive effect of the Amendment.

57 See upon this whole subject, Bailey v. Alabama, 219 U. S. 219; 31 Sup. Ct. Rep. 145; 55 L. ed. 191.

Equity courts would also undoubtedly feel themselves justified in issuing orders restraining servants from quitting work at a time that will endanger human life or limb, or, indeed, will cause unnecessary or irremediable pecuniary loss to the employer. Thus, for example, the train hands of a railway company might be forbidden to leave their employment before bringing their train to its destination, or at least to some station where additional hands might be obtained to operate the train.58

58 Freund, Police Power, §§ 333, 452. Also, Toledo, etc., Ry. Co. v. Pennsylvania Co., 54 Fed. Rep. 730; Arthur v. Oakes, 63 Fed. Rep. 310.

CHAPTER XXXVI

DUE PROCESS OF LAW

Due process of law: Definition of

By the Fifth Amendment the prohibition is laid upon the Federal Government that "no person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." By the Fourteenth Amendment a similar prohibition with reference to the deprivation of life, liberty or property is laid upon the States.

In almost every chapter of this treatise it has been necessary to discuss the meaning of these prohibitions. with reference to the exercise of specific powers by the Federal or State governments. In the present chapter, therefore, the attempt will be made to determine simply the general intent and scope of the phrase "due process of law."

No complete and rigid definition of due process of law has been given by the Supreme Court. Indeed, it is questionable whether it is possible to give one. "Few phrases in the law are so elusive of exact apprehension as this," the court declare in the recent case of Twining v. New Jersey,1 and add: "This court has always declined to give a comprehensive definition of it, and has preferred that its full meaning should be gradually ascertained by the process of inclusion and exclusion in the course of decisions of cases as they arise."

1211 U. S. 78; 29 Sup. Ct. Rep. 14; 53 L. ed. 97.