The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-11-20


minds of the people when that amendment
was being considered, and what were the mis-
chiefs to be remedied, and the grievances to
be redressed.
We have seen that the power of Congress,
by legislation, to enforce the masters right
to have his slave delivered up on claim was
implied from the recognition and guaranty
of that right in the national constitution.
But the power conferred by the thirteenth
amendment does not rest upon implication
or inference Those who framed it were
not ignorant of the discussion, covering
many years of the country's history, as to
the constitutional power of Congress to enact
the fugitive slave laws of 1898 and 1850.
When, therefore, it was determined by
change in the fundamental law to uproot
the institution of slavery wherever It ex-
listed in this land, and TO establish universal
freedom, there was a fixed purpose to place
the power of Congress in the premises be-
You'd the possibility of doubt Therefore,
ex industrial, the power to enforce the thir-
tenth amendment by appropriate legisla-
ton, was expressly granted. Legislation for
that purpose, it is conceded, may DE direct
and primary. But to what specific ends
may it be directed2 This court has uniform
ly held that the national government has
the power whether expressly given or not,
to secure and protect rights conferred or
guaranteed by the constitution. Omitted
States vs. Reese, 90 U. s., pa; Strauder VS..
West Virginia, 100 U. S., 300.) That doctrine
ought not now to be abandoned when the
inquiry is not as to an implied power to pro-
tect the masters rights, but what may Con-
gress do, under powers expressly granted,
for the protection of freedom and the rights
necessarily inhering in state of freedom.
The Thirteenth amendment, my brethren
concede, did something more than to pro-
hiblt slavery as an institution, resting upon
distinctions of race, and upheld by positive
law. They admit that it established and de-
creed universal civil freedom throughout the
United States. But did the freedom thus es-
tablished involve nothing more than ex-
emption from actual slavery? Was nothing
more intended than to forbid one man from
owning another as property? Was it the
purpose of the nation simply to destroy the
institution, and then remit the race thereto
fore held in bondage, to the several States for
such protection, in their civil rights, neces-
sarily gre wing out of freedom, as those
States, in their discretion, chose to provide?
Were the States, against whose solemn pro-
test the institution was destroyed, to be left
perfectly free, so far as national interference
was concerned, to make or allow discrimina-
tions against that race, as SUCH in the enjoy
ment of those fundamental rights that in
here in a state of freedom? Had the Thir-
teenth amendment stopped with the sweep
ing declaration, in its first section, against
the existence of slavery and involuntary
servitude, except for crime Congress would
have had the power, by implication, accord
ing to the doctrines of Prigg VS.. Common
wealth of Pennsylvania, repeated in Strauder
VS.. West Virginia, to protect the freedom
thus established, and, consequently, to Sc
cure the enjoyment of such civil rights as
were fundamental in freedom. But that it
can exert its authority to that extent is now
made clear, and was intended to be made
clear, by the express grant of power contain
ed in he nj nj
That there are burdens and disabilities
which constitute badges of slavery and sery-
itude, and that the express power delegated
to Congress to enforce, by appropriate legis-
lation, the Thirteenth amendment, may be
exerted by legislation of a direct and prim-
airy character, for the eradication, not simply
of the institution, but OF its badges and in
cidents, are propositions which ought to be
deemed indisputable. They lie at the very
Foundation of the civil-rights act of 1885,
Whether that act was fully authorized by the
Thirteenth amendment alone, without the
support which it afterwards received from
the Fourteenth amendment after the adop-
ton of which it was re-enacted with some
additions, the court, in its opinion, saws it is
unnecessary to inquire. But / submit, with
all respect to my brethren, that its constitu-
tiOnality is conclusively shown by other por-
tons of their opinion 1t is expressly con-
coded by them that the Thirteenth amend
ment established freedom; that there are
burdens and disabilities, the necessary Incl
dents of slavery, which constitute its sub
stance and visible form; that Congress, by
the act of 1866, passed in view of the tnir-
tenth amendment before the Fourteenth
was adopted, undertook to remove certain
burdens and disabilities the necessary Incl
dents of slavery. and to secure to all citizens
of every race and color, and without regard
to previous servitude, those fundamental
rights which are the essence of civil freedom,
namely, the same right to make and enforce
ontracts, to sue, be parties, give evidence
and to inherit, purchase lease, sell, and
convey property as is enjoyed by white
citizens; that under the Thirteenth amend
meut Congress has to do with slavery and its
incidents; and that 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. These propositions being conceded, it
is impossible, as it seems to me- to question
the constitutional validity of the civil
rights act of 1866. l do not contend that
the thirteenth amendment invests Congress
with authority, by legislation, to regulate
the entire body of the civil rights which
citizens enjoy or may enjoy in the
several States. But l do hold that
since slavery as the court has repeatedly
declared was the moving or principal
cause of the adoption of that amendme nt
and since that institution rested wholly
upon the inferiority as race of those
held in bondage, their freedom necessarily
involved immunity from, and protection
against all discrimination against them
because of their race, in respect of such civil
right as belong to freemen of other races.
Congress, therefore, under its express
power to enforce that amendment by
appropriate legislation, may enact laws to
protect that people against the deprivation,
on account of their race, of any civil rights
enjoyed by other freemen in the same State
and such legislation may be of direct and
primary character, operating upon States
their officers and agents, and also upon at
least, such individuals and corporations as
exercise public functions and WELD power
and authority under the State.
By way of testing the correctness OF this
position. let us suppose that prior to the