ought to be done about it? This is what I have to say about it. When you find the people of a community under the sense of local responsibility improving their attitude toward governmental responsibility, the most dangerous and hurtful thing that anybody can do for governmental efficiency and protection of those needing protection is to do that thing calculated-I really mean "calculated " to stop the development of that sentiment and attitude. If I were running a system of government and I saw the people in a little community were making progress in the matter of giving protection when they felt it was their job and not Uncle Sam's job away off in Washington, but their job at the forks of the creeks to protect, I would not disturb them or that development.

Senator CoSTIGAN. Suppose you, as a national legislator, found that sentiment growing in some parts of the Nation and receding in_others, would not such facts present difficulties to your mind? Representative SUMNERS. Yes; they might. I do not believe the Federal Government can handle this thing at all. I believe any interference on the part of the Federal Government is going to be hurtful to the development of this sentiment in this country. I believe the people in the main may be pretty well trusted to work out their governmental difficulties. Sometimes we get in a big hurry about it, of course. That is dangerous.

Mr. Chairman, I would like to have inserted at this point certain statistics with regard to lynchings in the United States which statistics show a trend and degree of progress which I respectfully submit a wise statesmanship should not imperil by interposing such a law and such a policy as is proposed by this bill. (The statistics referred to are as follows:)

NOTE.-Population 1889-1932 taken from Statistical Abstract of the United States 1932. Population 1933 from World Almanac, 1934.

Number of persons lynched 1889-1918 taken from statistics inserted in hearings on antilynchings bill before House Committee on the Judiciary, 1920, by James W. Johnson, of New York, field secretary of the National Association for the Advancement of the Colored Race. Number of persons lynched 1919-33 taken from World Almanac, 1934. Number of lynchings 1930-33 also given in Christian Advocate January 12, 1934, quoted in hearings before Senate Judiciary Committee on antilynching bill, 1934, page 186.

In the column "Population per person lynched ", the hundreds were dropped to give round numbers. In calculating the number of persons lynched per mililon of population the population was taken as millions in round numbers as the hundred thousands were above or below 500,000.

Senator VAN NUYS. Now you are talking upon the subject of the policy of this kind of legislation?

Representative SUMNERS. Yes; I am.

Senator VAN NUYS. This morning it was shown conclusively that it is impossible to procure indictments and convictions of leaders of mobs in lynchings. We had some very frank and fair witnesses on the stand this morning, but the sum total of their testimony-and their natural inclination apparently would have been to testify the other way-conclusively showed, in my opinion at least as an individual, the impossibility of obtaining convictions or even indictments in certain localities because of lynchings. One witness said it was a combination of the inefficiency of public officials and the sentiment of the community in support of their neighborhood and neighbors in not revealing names and facts and circumstances. But whatever may be the cause, in my opinion, the sum total of the evidence is that we cannot depend upon local prosecutions.

Representative SUMNERS. I think in many communities that is absolutely true. In most communities it probably would be true after a lynching takes place. The influence of the community is a thing that must be depended upon to prevent lynching, but after it has taken place, I believe you are correct about it. I think you would have great difficulty, and you will have just as great difficulty if Uncle Sam enters the field. I am not sure that you would not have greater difficulty.

Senator CoSTIGAN. Mr. Chairman, before the.committee adjourns may I ask that, for convenient references, there be incorporated in the record extracts from a brief by Hon. Guy D. Goff, at the time assistant to the Attorney General of the United States and later United States Senator from West Virginia; also a legal opinion by former Attorney General Daugherty; also a legal opinion by Mr. Moorfield Storey, of Boston, and another by Mr. Herbert K. Stockton, the latter embodied in a letter to Senator Borah, then chairman of the subcommittee having the Dyer bill under consideration; all as incorporated in the Senate Judiciary Committee report submitted by former Senator Shortridge, of California, to the Senate on April 20, 1922, on the Dyer antilynching bill. These legal opinions are to be found between pages 7 and 31 of that report of the Committee on the Judiciary of the United States Senate.

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Senator VAN NUYS. That may be done.

(The matters referred to are as follows:)

ANTILYNCHING BILL

Hon. Guy D. Goff, assistant to the Attorney General of the United States, appeared before the committee on July 20 with reference to this bill. His statement, in part, is as follows:

"This bill seeks to confer upon the Federal courts jurisdiction to enforce the law and maintain the peace of the United States, which is nothing more than the so-called 'police power' of the United States. You are familiar with that excursion', if I may so term it, of the Supreme Court into the field of Federal police power. It was first announced in Gibbons v. Ogden (9 Wheat. 202), and has found definite application in the so-called 'white-slave' cases. I recall those decisions distinctly because at that time I was engaged as an attorney for the United States in the interpretation and enforcement of the white slave law. In Gibbons v. Ogden, supra, Chief Justice Marshall (at p. 202) said: 'It is obvious that the Government of the Union in the exercise of its express powers may use means that may also be employed by a State in the

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exercise of its acknowledged powers. In the case which held the white slave law constitutional, Hoke v. The United States (227 U.S. pp. 308 and 309), the court said:

"While our dual form of Government has its perplexities, State and Nation having different spheres of jurisdiction, we are one people and the powers reserved to the States and those conferred on the Nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material and moral.

The White Slave Traffic Act is a legal exercise of the power of Congress under the commerce clause of the Constitution and does not abridge the privileges or immunities of citizens of the States or interfere with the reserved powers of the States, especially those in regard to regulation of immoralities of persons within their several jurisdictions.'

"In Hoke v. United States (227 U.S. 308, 323), speaking expressly of the power of Congress over interstate transportation, it was said the power is complete in itself, and that Congress, as an incident to it, may adopt not only means necessary but convenient to its exercise, and the means may have the quality of police regulations.'

"And in Wilson v. United States (232 U.S. 563, 567), speaking of the white slave law, which was held constitutional, the court said:

"As has already been decided, it has the quality of a police regulation, although enacted in the exercise of the power to regulate interstate commerce.' In seven cases of Eckman's Alterative v. United States (239 U.S. 510, 515) it was said:

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'Congress is not to be denied the exercise of its constitutional authority over interstate commerce, and its power to adopt not only means necessary but convenient to its exercise, because these means may have the quality of police regulations.'

"And an even more direct statement to this effect is:

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Congress may establish police regulations as well as the States, confining their operations to the subjects over which it is given control by the Constitution; Gloucester Ferry Co. v. Pennsylvania (114 U.S. 196, 215), citing Cooley's Constitutional Limitations, 732.'

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"In other words, when necessary for the proper exertion of its express powers Congress may use exactly the same means which the State may use for the exertion of its own powers. This is no new doctrine. In Gibbons v. Ogden, supra, it was said:

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"It is obvious that the Government of the Union, in the exercise of its express powers, that, for example, of regulating commerce with foreign nations and among the States, may use means that may also be employed by a State in the exercise of its acknowledged powers; that, for example, of regulating commerce within the State.'

"And again, in the very recent case, Hamilton v. Kentucky Distilleries Co. (251 U.S. 146, 156) (decided December 1919), inolving the constitutionality of the war-time prohibition act, Mr. Justice Brandeis, speaking for the Court, stated the principle thus:

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That the United States lacks the police power, and that this was reserved to the States by the tenth amendment, is true. But it is none the less true that when the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by the same incidents which attend the exercise by a State of its police power, or that it may tend to accomplish a similar purpose.'

"We had a somewhat hazy comprehension of the police powers of the State and the corresponding rights of the Federal Government. This line of cases holds that there is a Federal police power. Now, if there is a Federal police power, it must be by virtue of some power conferred on the Federal Government by our Constitution. It was conferred in the white-slave cases by the commerce clause. I assume, therefore, in this argument that there is such a Federal police power, a concomitant, as it were, to preserve law and order, and to see that the laws are equally enforced, and to see that no man is denied or deprived of the common right to enjoy life, liberty, and property, and that such rights are conferred upon the Federal Government by the fourteenth amendment to the United States Constitution.

"A case which has caused some discussion is the case of James v. Bowman (190 U.S. 127). I refer to this case, first, because it may be cited in contradiction of the underlying principles of the statement I have made. This case involved the fifteenth amendment to the United States Constitution. It grew

out of an indictment in the State of Kentucky, based upon section 5507 of the Revised Statutes of the United States, which sought to punish anyone who attempted to interfere with a person going to or from the polls, or intimidate those who sought to exercise their prerogative to vote as they saw fit. The Supreme Court held that the indictment was improvidently conceived and said that the fifteenth amendment, which reads: The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude', was an amendment which prohibited the State but did not reach the individual. Such was the underlying principle which controlled and which differentiates this case from the other cases. Mr. Justice Brewer wrote the opinion and, in addition to holding that the fifteenth amendment was a curb upon the Federal and State Governments, expressly said that it did not in any sense relate to individuals. He recognized the undoubted existence of the police power of the State and, in the last lines of the decision, remarked that the act was unconstitutional because it was too broad in its terms:

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'Congress, he concluded, has no power to punish bribery at all elections. The limits of its power are in respect to elections in which the Nation is directly interested, or in which some mandate of the National Constitution is disobeyed, and courts are not at liberty to take a criminal statute, broad and comprehensive in its terms, and in these terms beyond the power of Congress, and change it to fix some particular transaction for which Congress might have legislated if it had seen fit.

"The court recognized the rule, with which we are all familiar, that while a statute may be constitutional in some provisions and unconstitutional in others, the courts will hold it constitutional if they can separate, without destroying the purpose of the statute, the unconstitutional from the constitutional; or if you prefer, that where a statute cannot be separated or resolved into its constituent parts without committing judicial legislation, the courts will not, under such circumstances, attempt to hold the statute constitutional, but will declare it unconstitutional and deny the application of a comity rule of the judiciary, which strives to sustain legislation wherever possible. This case, as I say, recognized that where an inhabitant of a State attempted to interfere with the exercise of a general right which did not relate to a Federal election, that he was not guilty of violating this act. But I must draw this conclusion and emphasize it: I do not think the court attempted to decide that if the same acts so attempted under the broad general terms of the law, which the court felt constrained to hold as beyond the authority of Congress, had been attempted or accomplished in a specific general Federal election, that such acts would not have been a violation of the fifteenth amendment to the United States Constitution, obviously a law meeting the facts of such a situation would be constitutional. In Ex parte Virginia (100 U.S. 339, 346), construing the provisions of the fourteenth amendment, it was said:

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They have reference to actions of the political body denominated a State, by whatever instruments or in whatever modes that action may be taken. A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws.' 'In view of that interpretation and merely for the purposes of convenience and accuracy, permit me to refer expressly to the amendment:

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"No State shall make or enforce any law which shall abridge the privileges er immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.'

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Justice Brewer in the Bowman case, referring to the leading case of Ex parte Virginia, supra, gives to the fourteenth amendment, clearly and unequivocally, this interpretation: That no State shall deprive any person--not as a mere abstract entity, but through its legislative, its executive, or its judicial functions-of life, liberty, or property. In other words, the fourteenth amendment to the Constitution of the United States, insofar as it guarantees to the people of this country life, liberty, and property, means that the legislative department of a State shall in no sense encroach upon such common rights; it means that the executive department—that is, any person empowered with the enforcement of legislative acts, be it a governor, sheriff, or police official, acting under the municipal law of a State--shall not deny to any person the rights 42640-34-PT 2--5

which the fourteenth amendment pronounces shall be preserved, nor deny to any person the equal protection of the laws of that State.

"The learned justice also quotes from the very important case of United States v. Cruikshank (92 U.S. 542, 554). He adopts the statement:

"The fourteenth amendment prohibits a State from denying to any person within its jurisdiction the equal protection of the laws; but this provision does not, any more than the one which precedes it and which we have just considered, add anything to the rights which one citizen has under the Constitution against another. The equality of the rights of citizens is a principle of republicanism. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle, if within its power. That duty was originally assumed by the States, and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right.'

"The State can deny this right through an executive officer as readily as it can through a legislative or a judicial act. If a State, acting through its highest judicial officers, denies this right, there is a direct appeal, if the record has properly raised the point, to the Supreme Court of the United States. If the legislative department denies the right, we know, of course, how the right is preserved and enforced.

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The mere fact that the Congress of the United States has never affimatively, so far as I have been able to find, invaded the field, and by appropriate legislation under this constitutional provision sought to restrain the executive officers of the States from denying this right is no reason why Congress should not now take such appropriate action as will tend to protect their and similar rights. Therefore, without citing additional authorities, I unhesitatingly make this deduction:

"Wherever the Constitution has delegated to Congress certain rights and duties which Congress is permitted or bound to enforce and to carry out, the extent to which Congress may go in thus enforcing rights or fulfilling duties within the limitations prescribed by the Constitution is sufficiently great to permit of the exercise of a Federal police power, and the exercise of this Federal police power is neither repugnant to nor superior to the police power of the State. Each is concurrent with the other. Thus, if in the proper use of its taxing power, or in the constitutional regulation of commerce, or in the establishment of war-time rules, it becomes necessary to resort to measures which partake of the nature of or are, in fact, equivalent and similar to the police regulations of a State, Congress has the right to adopt such measures and to enforce them. How appropriately might the quotation from Gibbons v. Ogden be paraphrased to fit any of the express powers of Congress? Is it not a logical step to adopt this principle of constitutional law to the fourteenth amendment as to any other provision? If it be so applied, and if the aforementioned opinion be so paraphrased, is it not correct to say, with the great Chief Justice

"It is obvious that the Government of the Union, in the exercise of its express powers, that, for example, of providing to all citizens equal protection of its laws, may use means that may also be employed by a State in the exercise of its acknowledged powers.'

"In a word, it has been definitely established that there is a Federal police power; that Congress can invoke this power within the limits and according to the provisions of constitutional limitations; and that Congress having so invoked the power can enforce it to the fullest extent. If the State, in the mind of Congress, denies this right because all legislation assumes the existence of an evil to be corrected, then Congress, having legislatively determined that fact (and the courts will not consider whether Congress was or was not justified, but will assume because of Congress having passed appropriate legislation that the States have denied the rights in question), obviously, Congress possesses the authority under the fourteenth amendment and under the interpretation which the courts have given it to go forward and say that since the States of this country have denied to many people within their borders because of race and nationality the right to be protected in their property, in their lives and their liberty, and have also denied them the equal protection of the laws, a necessity exists that not only justifies but compels adequate and appropriate legislation to the end that the people of our several States may enjoy and be secure in those rights which the organic law guarantees them.

"We have, as you know, a great many instances where a State takes jurisdiction before the Federal Government and where the Federal Government may have and take concurrent jurisdiction. Those are the cases where the