"It was followed again in the trial of Caleb Powers, where, in a community
almost equally divided in politics, Powers being on trial on a charge of the
murder of a political opponent, no member of the political party with which
Powers was identified was drawn on the jury in three successive trials.
(Commonwealth v. Powers, 139 Fed. 452, 461; see also In re Orozco, 201 Fed.
106, 117.)

66

The Supreme Court of the United States has repeatedly stated that the last
clause of the first section of the fourteenth amendment guarantees the equal
protection of the laws by the States to all persons within their jurisdiction.
The common definition of a guaranty is an agreement by one person to answer
to another for the debt, default, or miscarriage of another.' Mr. Justice Story
thus defined it:

"A guaranty is the collateral undertaking by one person to be answerable
for the payment of some debt or the performance of some duty or contract for
another person, who stands first bound to pay or perform.' (2 Story, Contracts,
5th ed. 319.)

"Under the Constitution the States, by ratifying the fourteenth amendment,
have bound themselves to perform and discharge the duty of affording to all
persons within their respective boundaries the equal protection of the laws, and
the Federal Government has guaranteed the performance. The duty to perform
is a positive, affirmative duty of equal protection. Wherever this duty is not
performed, regardless of the excuse, there is a breach by the State of the con-
tract, and the obligation falls on the guarantor, the Federal Government, to
assure performance.

"The Supreme Court has laid down the rule of construction as to guaranties
that the words of the guaranty are to be taken as strongly against him (the
guarantor) as the sense will admit.' (Drummond v. Prestman, 12 Wheat. 515,
518.) If this is the rule as to the guarantor, it goes without saying that it is also
binding on the principal debtor.

"The general rule as to the liability of private corporations for torts com-
mitteed by agents within the scope of their authority (briefly and well stated
in 10 Cyc. 1205, 1222) certainly furnishes an analogy where a constitutional
guaranty had been given by State and Nation for performance by the State.
As to cases in point there is a paucity of authority, due to the fact that neither
State nor Nation may be sued without its consent. There are, however, cases
fully in point.

66

'The State of New York, having constructed or acquired certain canals,
consented to be sued as to claims for damages sustained from the canals,
from their use and management, or arising from the neglect of an officer in
charge, or from any accident or other matter connected therewith', excluding,
however, claims arising from damages resulting from the navigation of the
canals.' In Rexford v. State (105 N.Y. 229), Rexford, while navigating a
canal boat on the Erie Canal, left his boat at Syracuse to obtain a clearance,
and, returning to his boat, was severely injured by the fact that the agents of
the State had negligently permitted a ladder to become unsafe. The court
held the State liable for the negligence of the officers charged with the duty
of keeping the canal and its appurtenances in order.

"For a stronger case in point, see Gibney v. State (137 N.Y. 1; 19 L.R.A.
365). See also as to the liability of a State for the negligence of an officer or
agent: Green v. State (73 Calif. 29); Chapman v. State (104 Calif. 690; 43
Amer. St. 158); note to Houston v. State (42 L.R.A. 65-69; 36 Cyc. 882 n. 16).
"These cases are all to the effect that where a State consents to be sued
in tort it becomes liable as a private corporation for the negligence of an officer
or agent as to acts within the line of his duties.

"As to the right of the United States to sue a State or a county there can
be no question (United States v. North Carolina, 136 U.S. 211; United States
v. Texas, 143 U.S. 621; United States v. Michigan, 190 U.S. 379; Lincoln County
v. Luning, 133 U.S. 529).

"Originally a State might be sued by a citizen of another State (Chisholm
v. Georgia, 2 Dall. 419).

"This decision led to the adoption of the eleventh amendment, which
provides:

666

'The judicial power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted against one of the
United States by citizens of another State, or by citizens or subjects of any
foreign State.'

"It will be noted that this amendment takes away the right neither of the United States nor of any other State to sue a State, but simply restricts the right of citizens of other States to bring suits.

"As to the constitutionality of statutes imposing a penalty upon counties or municipalities for lynching or mob violence, the following additional authorities are submitted: Dale County v. Gunter (46 Ala. 111); De Kalb v. Smith (47 Ala. 407); Cantey v. Clarendon County (101 S.C. 141); Atchison v. Twine (9 Kans. 350); Cherryvale v. Hawman (80 Kans. 170; 23 L.R.A. (N.S.) 645); P., C., C. & St. L. Ry. Co. v. Chicago (242 Ill. 178; 44 L.R.A. (N.S.) 358; 11 Cyc. 500, 501).

"To summarize the argument it would appear that the United States, by the joint action of the States, has guaranteed that no State shall 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.

"It further appears that every State maintains a system of policing the State for the protection of life, liberty, and property, and that in certain of the States the equal protection of the law is, and for years has been, denied. There can be no question that the denial to persons of a class of the equal protection of the laws, by officers of or under the State charged with their equal enforcement, is the act of the State, and that the failure of the State, through its officers, to give the equal protection of its laws to a class must justify the intervention of the United States under the fourteenth amendment to carry out its guaranty of equal protection.

"In bringing this brief reference to authorities to a conclusion it is proper again to refer to two propositions of law laid down by the Supreme Court as to constitutional questions, the first quoted being in the words of Mr. Justice Bradley and the second in those of Mr. Chief Justice Marshall:

"We hold it to be an incontrovertible principle that the Government of the United States may by means of physical force exercised, through its official agents, execute on every foot of American soil the powers and functions that belong to it' (Ex parte Siebold, 100 U.S. 371, 395).

"Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited but consistent with the letter and spirit of the Constitution, are constitutional '" (McCullough v. Maryland, 4 Wheat, 316, 421).

Hon. A. J. VOLSTEAD,

DEPARTMENT OF JUSTICE,

OFFICE OF THE ATTORNEY GENERAL,
Washington, D.C., August 9, 1921.

Chairman Committee on the Judiciary,

House of Representatives.

MY DEAR MR. VOLSTEAD: I beg to acknowledge receipt of your letter of the 26th ultimo, transmitting a copy of House Resolution 13, to secure to persons within the jurisdiction of every State the equal protection of the laws and to punish the crime of lynching, and inviting suggestions and recommendations with a view to making the bill more effective or to avoid possible constitutional objections.

While under the statutes governing my office I am not authorized to give an official opinion to your committee relative to the bill, my interest in securing to persons within the jurisdiction of every State the equal protection of the laws, especially with reference to lynching, is so great that I feel warranted in submitting to you as my personal and not official opinion certain thoughts which have occurred to me as the result of a somewhat hasty examination of the bill. As pointed out by Colonel Goff in his statement before your committee, the first seven sections, providing for the removal of cases under certain conditions to the Federal courts, and providing for the punishment of persons obstructing or resisting officers of the United States, are in effect but elaborations of existing law. They appear to be well drafted and within the competency of Congress to enact.

Considerable discussion has taken place as to the constitutionality of the proposed legislation, it being contended that the fourteenth amendment gave Congress power to legislate so as to prevent a denial of the equal protection of the laws by the States and not as to acts of individuals not clothed with State authority. In support of this proposition the following cases have been cited: United States v. Cruikshank (92 U.S. 542); Virginia v. Rives (100 U.S. 313);

Ex parte Virginia (100 U.S. 339); Civil Rights cases (109 U.S. 3); United States v. Harris (106 U.S. 629); James v. Bowman (190 U.S. 127); Hodges v. United States (203 U.S. 1); United States v. Wheeler (254 U.S. 281).

Colonel Goff has very thoroughly gone over this question in his statement before your committee, and I heartily concur in the views he there expressed. It will be observed that in the cases above cited the court holds that the State may act through its legislative, its judicial, or its executive authorities, and the act of any one of these is the act of the State. This is concisely set forth in the opinion of the court in Ex parte Virginia (100 U.S. 339, at 346):

* *

*

"We have said the prohibitions of the fourteenth amendment are addressed to the States. They are, 'No State shall make or enforce a law which shall abridge the privileges or immunities of citizens of the United States, nor deny to any person within its jurisdiction the equal protection of the laws.' 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. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition, and as he acts in the name and for the State and is clothed with the State's power his act is that of the State. This must be so or the constitutional prohibition has no meaning. Then, the State has clothed one of its agents with power to annul or to evade it."

Of course if the act of one of these agencies of the State is a denial of the equal protection of the laws, since the act of such agent is the act of the State itself, such act is within the prohibitions of the fourteenth amendment to the Constitution. The authorities above cited hold that a statute that prohibits the act of an individual, irrespective of any action by the State or its officers, is beyond the power of Congress to enact under this fourteenth amendment. To my mind there can be no doubt that negativity on the part of the State may be, as well as any act of a positive nature by such State, a denial of the equal protection of the laws and thus be within the prohibition of the fourteenth amendment so as to give Congress power to act with reference to it. That such was in the mind of the court when pronouncing the decisions above cited is clearly shown by the following excerpts from the opinion of the court, speaking through Mr. Justice Bradley in the Civil Rights cases, supra, at pages 13 and 14:

"In fine, the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen but corrective legislation; that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing, or such acts and proceedings as the States may commit or take, and which, by the amendment, they are prohibited from committing or taking. It is not necessary for us to state, if we could, what legislation would be proper for Congress to adopt. It is sufficient for us to examine whether the law in question is of that character.

"An inspection of the law shows that it makes no reference whatever to any supposed or apprehended violation of the fourteenth amendment on the part of the States. It is not predicated on any such view. It proceeds ex directo to declare that certain acts committed by individuals shall be deemed offenses and shall be prosecuted and punished by proceedings in the courts of the United States. It does not profess to be corrective of any constitutional wrong committed by the States; it does not make its operation to depend upon any such wrong committed. It applies equally to cases arising in States which have justest laws respecting the personal rights of citizens and whose authorities are ever ready to enforce such laws, as to those which arise in States that may have violated the prohibition of the amendment. In other words, it steps into the domain of local jurisprudence and lays down rules for the conduct of individuals in society toward each other and imposes sanctions for the enforcement of those rules, without referring in any manner to any supposed action of the State or its authorities."

And again, at page 23:

"Many wrongs may be obnoxious to the prohibitions of the fourteenth amendment which are not, in any just sense, incidents or elements of slavery.

Such, for example, would be the taking of private property without due process of law; or allowing persons who have committed certain crimes (horse stealing, for example) to be seized and hung by the posse comitatus without regular trial; or denying to any person or class of persons the right to pursue any peaceful avocations allowed to others."

My examination of the proposed legislation causes me to believe that all of its provisions are predicated upon some action-either negative or positiveupon the part of the States and that therefore the same is wholly within the competency of Congress to enact.

Section 10 imposes a penalty upon every county in which an unlawful killing occurs, and section 11 imposes a like penalty on every county through which the victim may be carried before being put to death. While the question whether the United States may penalize an instrumentality of a political subdivision of a State may cause some doubt it is at least an open one so far as the decisions of the Supreme Court are concerned. There has been conferred on Congress the power by appropriate legislation to enforce the prohibitions of the fourteenth amendment, and the imposition of penalties is a well-established means of enforcing the laws, and is so recognized by numerous decisions of all courts and is no doubt an appropriate method of so enforcing the law. This being true and the States having consented by their adoption of the provisions of the Constitution and its amendments to such enforcement of the law by the Federal Government, it would seem there could be but little question of the power of Congress to provide for such penalties.

Section 12 and section 13 provide for the punishment of State and municipal officers who fail in their duty to prevent lynchings or who suffer persons accused of crime to be taken from their custody for the purpose of lynching. These sections seem to me to strike at the heart of the evil, namely, the failure of State officers to perform their duty in such cases. The fourteenth amendment recognizes as preexisting the right to due process of law and to the equal protection of the law and guarantees against State infringement of those rights. A State officer charged with the protection of those rights who fails or refuses to do all in his power to protect an accused person against mob action denies to such person due process of law and the equal protection of the laws in every sense of the term. The right of Congress to do this is fully sustained by the decision of the court in Ex parte Virginia, supra. (See pp. 346, 347.)

Section 15, providing for the punishment of unlawful acts committed against citizens or a subject of a foreign country meets a long-standing need which has been expressed by a number of Presidents. In Missouri v. Holland (252 U.S. 416) the court has upheld the power of Congress to enact laws necessary and appropriate to the effectuating of treaties.

I am, in a separate letter, to which is attached a copy of the proposed bill, calling attention to some slight modifications that I am taking the liberty to suggest, most of them being directed to matters of clarity in such proposed legislation.

Yours very truly,

H. M. DAUGHERTY, Attorney General.

Mr. Moorfield Storey, of Boston, submitted a brief from which is quoted the following:

THE REMEDIES

It is clearly idle to hope that the Constitution can be amended so as to increase the powers of Congress in this matter. The States where racial prejudice prevails are too numerous.

The alternative therefore is clear. Either Congress has the power to pass effective legislation against lynching or the United States cannot protect its own citizens from murder and their property from destruction at the hands of their fellow citizens who are subject to its jurisdiction. It can impose burdens, but it cannot defend rights. It can tax but it cannot save the taxpayer. That lynching is a Nation-wide evil, that no action by the States can be expected, and that the evil should be abated for the sake of the Nation quite as much as for the sake of those who suffer by it must be conceded.

To admit that the Nation is powerless to abate such an evil and to protect its own citizens is to admit that our Government is weaker than any other civilized government. This is an admission which we should be ashamed to make.

We should therefore expect to find that the national legislature has power to end a national abuse in the interest of the Nation. Salus populi suprema est lex is the rule which should control our actions.

There are three sources from which the power to pass this law may be derived.

THE FOURTEENTH AMENDMENT

The one which is generally considered first in any discussion of the question is the fourteenth amendment of the Constitution, of which the first section reads as follows:

"All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privilege or 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.” The last section of the amendment expressly gives Congress the "power to enforce by appropriate legislation the provisions of this article." This grant of power cannot be ignored.

It is not necessary to point out that this amendment was adopted in order to assure to the freedmen the rights of American citizens. The language of the amendment makes them American citizens first, and apparently as a consequence citizens of the State in which they reside. It forbids the abridgement of the rights belonging to "American citizens", and it is evident that importance was attached to their position as citizens of the United States.

The situation which this amendment was intended to meet was a very practical one, and the amendment should receive a construction equally practical, a construction calculated to accomplish its purpose, not to defeat it. The enfranchised Negroes were dwelling in communities where they had been held as slaves and in those communities had been regarded and treated as chattels, not as men. Their elevation to the rank of citizens was regarded with absolute hostility, and it was clear that their rights would not be respected unless they were maintained by the United States. The amendment was passed to secure these rights and to give Congress the power to maintain them. It never was the intention of the people who adopted the amendment that the States so recently in rebellion should be able to nullify the amendment by simple nonaction and should be able to plead that the persons who trampled on the new citizens were merely private persons for whose acts the State was not responsible.

The rule laid down by Chief Justice Marshall should be applied. When speaking of the Constitution, he said:

*

This instrument contains an enumeration of powers expressly granted by the people to their Government. It has been said that these powers ought to be construed strictly, but why ought they to be so construed? Is there one instance in the Constitution which gives countenance to this rule? If from the imperfection of human language there should be serious doubts respecting the extent of any given power, it is a well-settled rule that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction. * * * We know of no rule for construing the extent of such powers other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they are conferred" (Gibbons v. Ogden, 9 Wheat. 187, 188).

Speaking of the power to regulate commerce, he says, at page 196:

"This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed by the Constitution. The wisdom and the discretion

* * *

of Congress, their identity with the people, and the influence which their constituents possess at elections are in this as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied to secure them from its abuse. They are the restraints on which the people must often rely solely in all representative governments."

Again, at page 204:

* * *

"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 exercise of its powers."