(concurring in part, dissenting in part).
As to Counts 8 and 9, charging peonage as to Rose Fisher and her sister, Pollie Melton, the evidence sufficiently establishes a condition of peonage, that is a contract between the defendant and the two girls there concerned, inmates of the Reidsville Prison, to work out the fine the defendant had paid for them. I, therefore, concur in the affirmance of the judgment as to these counts.
As to the other counts, there is neither claim nor proof that the women named in it had entered into a contract with Pierce obligating them to work for him until they worked out the claimed debt. Absent such an agreement, there was no condition of peonage, and I dissent from the affirmance as to those counts.
The 13th Amendment provides broadly:
Sec. 1. “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist in the United States, or any place subject to their jurisdiction.”
Sec. 2. “Congress shall have power to enforce this article by appropriate legislation.”
Pursuant to the authority thus conferred, Congress passed the Act of March 2, 1867, the provisions of which now appear as Sec. 56, 8 U.S.C.A.1 and Section 444, 18 *87U.S.C.A.2 It will be noted that though the amendment broadly prohibits involuntary servitude without limitation, the statutes are aimed at and confined to peonage. Section 56 abolishes the holding of any person to service or labor under the system known as peonage, and all acts, laws, resolutions, orders, regulations or usages which have established and maintained or may in future establish and maintain "the voluntary or involuntary service or- labor of cmy persons as peons.” Sec. 444 makes penal and provides punishment for not any and all kinds of involuntary servitude, but only that kind which is “a condition of peonage.” To that end it provides a fine and imprisonment for “whoever holds * * * or causes to be held * * * any person to a condition of peonage.” These plain provisions make it quite clear that in order to convict, the indictment must charge, and the proof must show, facts which amount to a holding or causing to be held in a condition of peonage. The statutes have been on the books since 1867 and many cases have been tried under them. No case until this one has ever held that, absent a contract, law or usage requiring service in payment of a debt, a condition of peonage is made out. Brief references will show this to be so. In Peonage Cases, D.C., 123 F. 671, 673, in a learned discussion of peonage, the court said:
“The peon was not a slave. He was a freeman, with political as well as civil rights. He entered into the relation from choice, for a definite period, as result of mutual contract. * * * The peon, male or female, agreed with the master upon the nature of the service, the length of its duration, and compensation. The peon then became bound to the master ‘for an indebtedness founded upon an advancement in consideration of service’.”
Again citing the Act of 1867:
“The meaning of the terms in this statute must be sought in the light of this history of the institution in New Mexico, and the design of Congress, interpreted in the light of the evil ‘condition’ that system developed, which the statute declared should not thereafter exist in any state or territory.”
Holding that it was not necessary that the peonage be brought about by the precise system developed in New Mexico, the court held that the condition was prohibited no matter how brought about. Discussing holding or returning to a condition of peonage, the court said, “What is meant by a ‘condition of peonage,’ or holding or return thereto, is easily gathered from the words of the statute, and the working of the system in New Mexico when upheld there as a legal institution. Under the abolished system, as we have seen, the citizen could sell his own services, and could contract with another for the exercise of dominion thereafter over his person and liberty, so that he could be held or subjected, against his will, to the performance of his ‘obligation.’ ” (Emphasis supplied.) Again, “The first step to create a condition of peonage is taken when the debtor or person agreeing to perform ‘service or labor’ contracts that it may thereafter be coerced, against his will, by dominion over his person and liberty.” (Emphasis supplied.) In Peonage Cases, D.C., 136 F. 707, 708, Judge Treiber declared:
“Peonage, within the meaning of this law, is the holding of any person to service or labor for the purpose of paying or liquidating an indebtedness due from the laborer or employé to the employer, when such employé desires to leave or quit the employment before the debt is paid off. It is wholly-immaterial whether the contract whereby the laborer is to work out an indebtedness due from him to the employer is entered into voluntarily or not. The laws of the United States declare all such contracts null and void, and they cannot be enforced. It is immaterial whether such a contract is made in consideration of a pre-existing indebtedness, or for a loan made at the time the contract is made.” (Emphasis supplied.)
In Clyatt v. United States, 197 U.S. 207, 25 S.Ct. 429, 430, 49 L.Ed. 726, the Supreme Court takes the same view. Declaring that peonage may be defined as a “status or condition of compulsory service, based upon the indebtedness of the peon to the master,” the court said:
"Peonage is sometimes classified as voluntary or invohmtary * * *. The one *88exists 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 compulsive service, — involuntary servitude.” (Emphasis supplied.)
Then after further discussing peonage, the Supreme Court reversed the conviction and remanded the case because there had been no proof that the persons whom defendant was charged with having returned to a condition of peonage had ever been in such a condition. In Bailey v. Alabama, 219 U.S. 219, 220, 31 S.Ct. 145, 151, 55 L.Ed. 191, a case arising under Sec. 56, the court held invalid as imposing a condition of peonage, an Alabama Statute which authorized the conviction for fraud of a laborer who had signed a contract agreeing to work out a debt. In the course of the discussion, the court said:
“Peonage is a term descriptive of a condition which has existed in Spanish America, and especially in Mexico. The essence of the thing is compulsory service in payment of a debt. A peon is one who is compelled to work for his creditor until his debt is paid.”
Other cases since, United States v. Reynolds, 235 U.S. 133, 35 S.Ct. 86, 59 L.Ed. 162, Taylor v. Georgia, 315 U.S. 25, 602 S.Ct. 415, 86 L.Ed. 615, United States v. Gaskin, 320 U.S. 527, 64 S.Ct. 318, have taken the same view. Bernal v. United States, 5 Cir., 241 F. 339, a decision by this court, with one member dissenting, is not to the contrary. The record as we have it is meager but it does contain threats by the defendant that a victim, a Mexican woman, would be turned over to the immigration officers and confined if she tried to leave before paying her debt. The opinion cites the Clyatt case, and the conviction was reversed as to the two others against whom no law was invoked. The evidence here makes it clear, I think, that no condition of peonage existed except as to the two girls whose fines were paid and who were taken from the penitentiary by the defendant with the understanding that they were to work the fine out at his place. As to the other girls, all that is made to appear is that the defendant advanced them moneys to buy clothes and threatened them if they tried to leave before they paid him back. It is not claimed that they had agreed with him to work for him until the indebtedness was paid out, and thereby put themselves in a condition of peonage. It it claimed merely that the fact that, he claimed they owed him and, so claiming, subjected them, by threats and putting in fear, to involuntary servitude, makes out a condition of peonage. I do not think so. The statute has been on the books for nearly 100 years. Its meaning and effect have become well defined and established. To interpret it now to cover any case of involuntary servitude except one which constitutes peonage is, I think, to do violence to its plain meaning and established' construction. While, therefore, I concur in the affirmance on Counts 8 and 9, I dissent from the affirmance on the other counts.
“The holding of any person to service or labor under the system known, as peonage is abolished and forever prohibited in any Territory or State of the United States; and all acts, laws, resolutions, orders, regulations, or usages of any Territory or State, which have heretofore established, maintained, or enforced, or by virtue of which any attempt shall hereafter be made to establish, maintain, or enforce, directly or indirectly, the voluntary or involuntary service or labor of any persons as peons, in liquidation of any debt or obligation, or otherwise, are declared null and void.” Sec. 56, 8 U.S.O.A.
“ (Criminal Code, Section 269.) Holding or returning persons to peonage. Whoever holds, arrests, returns, or causes to be held, arrested, or returned, or in any manner aids in the arrest or return of any person to a condition of peonage, shall be fined not more than $5,000, or imprisoned not more than five years, or both.” Sec. 444, 18 U.S.C.A.