ployments, must be regarded as the establishment of involuntary servitude, and therefore forbidden."

The Supreme Court of the United States, in the Slaughter House Case, 16 Wall. 36, 21 L. Ed. 394, says:

"The word 'servitude' is of larger meaning than slavery, as the latter is popularly understood in this country, and the obvious purpose was to forbid all shades and conditions of African slavery. It was very well understood that in the form of apprenticeship for long terms as it has been practiced in the West India Islands, on the abolition of slavery by the English government, or by reducing slaves to the condition of serfs attached to the plantation, the purpose of the article might have been evaded, if only the word 'slavery' had been used."

And Mr. Justice Field, in his dissenting opinion in the same case. says:

"It is, however, clear that the words 'involuntary servitude' include some thing more than slavery in the strict sense of the term. They include also serfage, vassalage, villanage, peonage, and all other forms of compulsory serv ice for the benefit or pleasure of others."

In the Civil Rights Case, 109 U. S. 3, 3 Sup. Ct. 18, 27 L. Ed. 835, Mr. Justice Bradley, referring to a former decision of the same court which had considered the extent of the rights, privileges, and immuni ties of citizens, which cannot rightfully be abridged by state laws, says: "A long list of burdens and disabilities of a servile character incident to feudal vassalage in France, and which were abolished by the decrees of the National Assembly, was presented for the purpose of showing that all in equalities and observances exacted by one man from another was servitud or badges of slavery which a great nation, in its effort to establish universa liberty, made haste to wipe out and destroy; but these were servitudes im posed by the old law, or by long custom which had the force of law, and ex acted by one man from another without the latter's consent. Should any suc servitudes be imposed by a state law, there can be no doubt that the lav would be repugnant to the fourteenth amendment, no less than to the thir teenth amendment, nor any greater doubt that Congress had adequate powe to forbid any such servitude from being enacted."

Mr. Tiedeman, in State and Federal Control of Persons and Proper ty (volume 2, § 204), says:

"Every man has a natural right to hire his services to any one he please or to refrain from such hiring, and so likewise it is the right of every one t determine whose services he will hire. ** * * The government therefor cannot exert any restraint upon the actions of the parties."

In Ritchie v. People, 155 Hl. 98, 40 N. E. 454, 29 L. R. A. 79, 4 Am. St. Rep. 315, the court says:

"If an owner cannot be deprived of his property without due process of lay he cannot be deprived of any of the essential attributes which belong to th right of property without due process of law. Labor is property. The borer has the same right to sell his labor and to contract with referen thereto as any other property owner. The right of property involves as o of its essential attributes the right not only to contract, but also to termina contracts. * * In view of what has been said, it cannot be doubted th the plaintiff in error, Charles Gillespie, had a right to terminate his co tract, if he had one with Ritchie, subject to civil liability for any termin tion which should be unwarranted. One citizen cannot be compelled to gi employment to another citizen, nor can any one be compelled to be employe against his will. The act of 1895, now under consideration, deprives the en

ployer of the right to terminate his contract with his employé. The right to terminate such a contract is guarantied by the organic law of the state. The Legislature is forbidden to deprive the employer or employé of the exercise of that right. The Legislature had no authority to pronounce the performance of an innocent act criminal, when the public health, safety, comfort, or welfare is not interfered with. The statute in question says that, if a man exercises his constitutional right to terminate a contract with his employé, he shall upon hearing be punished as for the commission of a crime.”

Adam Smith, in his Wealth of Nations (page 1, c. 10, pt. 2), says: "The property which every one has in his own labor, as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands, and to hinder him from employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property."

To compel one person to labor for another against his will is legalized thraldom. It would scarcely be contended that Clement could by force or threats compel these petitioners to work for him against their will in payment of their indebtedness. Any such attempt on his part would be a direct violation of the act of Congress of March 2, 1867, which forbids any attempt, directly or indirectly, to enforce involuntary service or labor in liquidation of any debt, and would subject him to a criminal prosecution and to the penalties denounced in that act, and the same act declares null and void the laws of any state or territory which have theretofore been enacted, or might thereafter be enacted, to enforce involuntary service or labor in liquidation of debts.

To sustain the validity of this statute, it is contended that the violaton of a contract of the nature mentioned therein is a fraud; that the punishment of fraud is within the police power of the state; and that, nasmuch as the petitioners have been convicted and are serving a sentence for the offense denounced by the statute as a misdemeanor, their case falls within the exception of the thirteenth amendment, beng a punishment for crime whereof the parties have been duly convicted. Much stress was laid in the argument upon an opinion of the Supreme Court of New Jersey, wherein it is said:

"I think it one of the most dishonest things a man can be guilty of to refuse to pay his honest debts, when he has the means to do so. Whatever is shonest is fraudulent in foro conscientiæ. * Fraud and dishonesty e synonymous terms. * If he acts unjustly and unlawfully he acts fraudulently. An unjust man is a fraudulent man." Ex parte Clark, 45 Am. Dec. 396, 19 N. J. Law, 648.

And it is maintained that the failure to perform, after having received advances, etc., the reasonable service willfully and without just cause, is a malum in se, and the state has the right to penalize it in repression of fraudulent practices. It is unnecessary to consider whether à statute declaring it to be a misdemeanor to fail to pay debts, or to erform contracts generally, will fall within the general police powers f the state, for this statute is not of that character. It is directed towards a single class of citizens, which is arbitrarily singled out, and nished for failure to perform certain duties.

The Supreme Court in Gulf, etc., Railway v. Ellis, 165 U. S. 157, 17 Sup. Ct. 257, 41 L. Ed. 666, says:

"But before a distinction can be made between debtors, and one be punished for a failure to pay his debts, while another is permitted to become in like manner delinquent, without any punishment, there must be some difference in the obligation to pay, some reason why the duty of payment is more imperative in the one instance than in the other. The rule of equality is ignored. Unless the Legislature may arbitrarily select one corporation or one class of corporations, one individual or one class of individuals, and visit the penalty upon them which is not imposed upon others guilty of like delinquency, this statute cannot be sustained; but arbitrary selection can never be justified by calling it classification. The equal protection demanded by the fourteenth amendment forbids this."

And elsewhere in the same opinion (page 158 of 165 U. S., page 258 of 17 Sup. Ct. [41 L. Ed. 666]), the court says:

"But a mere statute to compel the payment of indebtedness does not come within the scope of police regulations."

It will be observed that the statute nowhere declares that a laborer violating his contract shall be deemed guilty of a misdemeanor, and punished for such violation. It provides in terms that any laborer, etc., "who shall receive advances either in money or supplies and thereafter wilfully and without just cause fail to perform the reasonable service required of him by the terms of the said contract, shall be liable to prosecution for a misdemeanor." Its whole purpose is to coerce the laborer to perform the service required of him by the terms of his contract under penalty of prosecution and imprisonment if he fails to work. It is a legislative judgment enforcing involuntary servitude. It does not imprison the laborer because he refuses to pay the debt or return the advances, but because he does not continue in an involuntary servitude. Under the guise of police power, it compels one person to continue against his will to render personal services to another. If this act and others of cognate character are sustained, the state may by its criminal laws completely nullify and abrogate the main object of the amendment prohibiting slavery and involuntary servitude, and es tablish a complete system of peonage. That system, as it existed in New Mexico, is described by Davis, in his book, "El Gringo," as:

"But a more charming name for a species of slavery as abject and oppressiv as any found upon the American continent. * Among the proprietor in the country, the master generally keeps a store, where the servant is oblige to purchase every article he wants, and thus it is an easy matter to keep hi always in debt. The master is required to furnish the peon with goods at the market value, and may advance him two-thirds the amount of his monthl wages; but these provisions, made for the benefit of the peon, are in mos instances disregarded, and he is obliged to pay an enormous price for every thing he buys, and is allowed to run in debt beyond the amount of his wage in order to prevent him leaving his master. * * One of the most obje tionable features is that the master is not obliged to maintain the peon i sickness or old age. When he becomes too old to work any longer, like an ol horse who is turned out to die, he can be cast adrift to provide for himsel These are the leading features of peonage, and in spite of the new name bears the impartial reader will not be able to make anything else out of than slavery."

Counsel for the state attempts to distinguish this act from the Ala bama statute which the Supreme Court of that state, in Toney State, 67 L. R. A. 286, 141 Ala. 120, 37 South. 332, 109 Am. St. Rep 23, declared unconstitutional. That act made it a penal offense fo

a person who had contracted in writing to labor for or serve another for any given time, afterwards, without the consent of the other party, and without sufficient excuse to be adjudged by the court, to leave such other party or abandon such contract or leave or abandon the leased premises or land, and to take employment of a similar nature from another person, and they attempt to draw a distinction between the words "without sufficient excuse to be adjudged by the court," and our statute, which declares it a misdemeanor "wilfully and without just cause to fail to perform the service," etc. We cannot perceive any essential distinction between the words "without sufficient excuse,' and the words "without just cause."

It is also claimed by counsel that the statute of South Carolina is substantially identical with section 4730 of the Code of Alabama of 1896, which Judge Jones, in his opinion on the Peonage Cases (D. C.) 123 Fed. 690, held to be constitutional. That section is as follows: "Any person entering into a written contract for the performance of any acts or service with intent to injure or defraud his employer and thereby obtains money or personal property from such employer and with like intent and without just cause, and without refunding the money or paying for such property, refuses to perform such act or service, must on conviction be punished as if he had stolen it."

This Alabama statute, is will be seen, is of a general nature. It applies to all persons who enter into contracts with intent to injure or defraud, and declares that persons who obtain money with such intent shall be punished as if they had stolen it. The essence of this statute is the obtaining money with fraudulent intent, which in many of the states 15 declared a criminal offense. The essence of the South Carolina statute is the coercing of personal service in liquidation of a debt, and the cases cited by counsel arising in the state of Georgia, where a statute somewhat similar to that of Alabama was under review, illustrate the distinction. In Lamar v. State, 47 S. E. 958, 120 Ga. 312, the court says:

"If the act prescribes a punishment for a simple failure of a contractual ty, it is beyond the power of the General Assembly; but, if its purpose is to unish for fraudulent and deceitful practices, it is valid, even though the frand or deceit may arise from the failure to comply with the contractual enement. The right of the lawmaking power to declare fraudulent practices time does not seem to have been ever seriously questioned. It is reasonbly clear that, in enacting the statute now under consideration, the legislave purpose was not to punish one simply for a failure to pay a debt, but was to punish the act of securing the money or property of another with a fraudent intent not to perform the service, the promise to do which was the consideration for such money or property."

Banks v.

Other cases from the same state are to the same effect. State, 52 S. E. 74, 124 Ga. 15, 2 L. R. A. (N. S.) 1007, where Lumpkin, Justice, says:

"On the face of it, the purpose of the act is to punish fraudulent practices, ut the mere failure to pay a debt. Thus considered, it was constitutional, therwise it would not be so."

The same counsel seemed to consider a phrase of Mr. Justice Brown, n Robertson v. Baldwin, 165 U. S. 275, 17 Sup. Ct. 326, 41 L. Ed.

153 F.-63

715, as furnishing some support for their view. The passage quoted is this:

"A breach of a contract for personal service has not, however, been recog nized in this country as involving the liability to criminal punishment, except in the case of sailors and soldiers, and possibly some others, nor would public opinion tolerate a statute to that effect."

And the argument is that the phrase "possibly some others," followed by the words "public opinion," indicates that the Supreme Court recognized that there might be exceptions to the general rule forbidding involuntary servitude, and that wherever public opinion tolerated such exceptions the courts are bound to recognize that public opinion as the sole tribunal for the redress of any evils complained of.

In Robertson v. Baldwin, four seamen, who had been arrested in accordance with the provisions of section 4598 of the Revised Statutes. sought their release by habeas corpus on the ground that this section was in violation of the thirteenth amendment, and the court held that this amendment was not intended to introduce any novel doctrine with respect to certain descriptions of service which had always been treated as exceptional, such as the military and naval establishments. or to disturb the rights of parents and guardians to the custody cf their minor children and wards, and reviewing the history of the maritime law, and the grounds upon which it rested, says:

"From the earliest historical period, the contract of a sailor has been treated as an exceptional one, and involving to a certain extent his personal liberty during the life of the contract. Indeed, the business of navigation could scarcely be carried on without some guaranty beyond the ordinary civil remedies upon contracts that the sailor will not desert the ship at a critical mo ment or leave her at some place where seamen are impossible to be obtained. as Molloy forcibly expresses it, 'to rot in her neglected brine.' Such deser tion might involve a long delay of the vessel, while the master is seeking an other crew, and abandonment of the voyage, and in some cases the safety of the ship itself. Hence the laws of nearly all maritime nations have made provision for securing the personal attendance of the crew on board and for criminal punishment for desertion or absence without leave during the life of the shipping articles."

Counsel have with apparent seriousness attempted to maintain tha the case of the petitioners here is analogous to that of sailors who ha embarked on a voyage; that their continuance in the service of thei employer was as essential to the safety of the crop as the service o sailors to the safety of the ship. In other words, that these men whe had made a contract for service last year may be arrested and im prisoned in January, when probably there is not seed in the ground and such arrest be vindicated by the immemorial usage which require sailors to remain at their posts. It may be proper to say that the sec tion of the Revised. Statutes above referred to has been repealed sinc this opinion was filed, but the lack of analogy between the two classe is too apparent to require discussion.

The fact that there might be exceptions to the general language o the thirteenth amendment led the court to attempt to lay down som rule whereby in any given case it could be determined whether the in voluntary servitude complained of falls within the inhibitions of th