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teenth amendment have been invaded by mob violence with the active concurrence or through the nonaction of State or local officers, or where such rights cannot, by reason of local conditions, be properly vindicated in the local
As has already been stated, the fourteenth amendment not only prohibits certain action or nonaction by the several States and public and local officers but also, by necessary implication, confers upon every America citizen and Kun lontoon certain rights which the Congress may protect by all appropriate Means in the exercise of plenary police power.
In a proper sphere Congress possesses a Federal police power quite as complete in any police power possessed by the States.
In Iloko v. United States (227 U.S. 308), speaking expressly of the power of (ongen over interstate transportation, the Supreme Court said (p. 323):
'The power is complete in itself and Congress, as an incident to it, may adopt not only means necessa ry but convenient to its exercise and the means. may have the quality of police regulations."
In (11bbons v. Ogden (9 Wheat.), Chief Justice Marshall said (p. 202):
"I! IN obvious that the Government of the Union in the exercise of its PATTONN power's
may use means that may also be employed by a State in the exercise of its acknowledged powers."
Iu Hamilton v. Kentucky Distillers Co. (251 U.S. 146), the Supreme Court
" When the United States asserts any of the powers conferred upon it by the (Honstitution, 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."
furthermore the reciprocal duty of the States under the fourteenth amenilment xiistains the constitutionality of the antilynching bill. The fourteenth amendment is as much the law of the separate States as it is of the United States. The individual rights which it confers upon American citizens and Aguarantees are rights existing under the law of the land and hence are rights which are entitled to recognition and protection by the law and jurisprudence of the averal States.
Riy ratio'ing the fourteenth amendment the sereral States have bound themplus to perform and discharge the duty of affording to all persons within their tire boundaries the equal protection of the laws, and the Federal Qolprent has guarantee this performance. The duty to perform is a posifire attirnative duty of equal protection. Whererer this duty is not perPermerinullees of the excuse, there is a breach by the State of the contrace, and the obligation falls on the guarantor, the Federal Government, to Ne Yener and to redress whaterer wrongs hare been suffered by
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Constitution to guarantee the republican form of government in the several States.
The right to due process of law and the equal protection of the laws are fundamental conceptions of justice and inherent in the very idea of republican or free government. In Powell v. Alabama (287 U.S. 45) the Supreme Court, quoting from its earlier decision in Holden v. Hardy (169 U.S. 366, 389) said concerning the right to due process of law and the equal protection of the laws (p. 371):
“ There are certain immutable principles of justice which are inherent in the very idea of free government which no member of the Union may disregard."
In United States v. Cruikshank (92 U.S. 542) the Supreme Court said (p. 555):
“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."
Obviously the substitution of mob rule for free government and the obstruction of the immutable rights of private citizens by mob violence, where the objective or consequence is the overthrow of due process of law or the equal protection of the law is a violation of the right of the injured citizen to enjoy the advantages and privileges of a republican form of government. In the exercise of the police power expressly conferred upon Congress to preserve the republican form of government in the several States and to vindicate the right of the private citizens thereof to enjoy the protection of free government, Congress may enact all appropriate remedial measures and may set up machinery for the enforcement thereof by the Federal courts. Such police measures may, obviously, be both preventative and remedial-may seek to prevent a destruction of constitutional rights by the substitution of mob rule for free government and may provide remedies for wrongs suffered by reason of such substitution.
The provisions in the antilyinching bill for penalizing the county where a lynching occurs by a sum to be fixed as liquidated damages is constitutional and thoroughly sustained by judicial authority.
The policy of imposing liability upon a civil subdivision of government is familiar to the common law. A State may, in the exercise of its police power, impose absolute liability upon a city to be collected by an injured indi. vidual (City of Chicago v. Sturges, 222 U.S. 313). In the earliest English statutes there are repeated instances of communities being fined or mulcted in damages for robberies and assaults occurring in their midst, the theory being that the taxpayers would, in consequence, hold their local officials to greater vigilance (Reeves History of English Law, vol. II, p. 340; Coke, 2 Inst. Ch. 17, p. 369; 31 N.Y. 189; 62 Ohio State 318, 333, 340).
Moreover, under our theory of law, every citizen is, in a sense, a police officer; and has certain rights and duties in the prevention of crime. The old posse comitatus which made every able-bodied citizen, over the age of 15, subject to impressment by the sheriff to assist in preserving peace, and the power of a citizen to arrest for a felony on view without warrant, are illustrations of the inherent police authority of every citizen. In these modern days these duties have been delegated to hired officers of the law, but the underlying obligation still remains and cannot be violated.
A recent application of these principles in an identical case is to be found in People v. Nelliss, 249 Ill. 12. There a statute of Illinois imposed against a county where a lynching occurred the sum of $5,000 as damages recoverable by the victim's heirs. In upholding the validity of this statute the supreme court of Illinois said (p. 19):
“ It is, we think, too clear for argument that those provisions of said act which provide that persons engaging in mob violence shall be guilty of a felony and subject to imprisonment in the penitentiary will tend to prevent men from joining mobs when assembling and will tend to the suppression of mob violence, and it is, we think, equally clear that the imposing of a liability for damages upon the county or city in favor of the victim of a mob whenever mobs are permitted to assemble, or, in the case of his death, in favor of his widow or heirs or adopted children, will cause the taxpayers of such county or city to discourage the assembling of mobs within such municipalities and will cause all law-abiding men residing in such communities to condemn and denounce mob violence, the result of which must be to create respect for the law and its enforcement and to discourage the assembling of mobs.”
So, likewise, the provisions in the antilynching bill for proceedings in the Federal courts are constitutional. These provisions contemplate that if the United States district court is satisfied, by competent proof, that prosecuion of the lynchers cannot be had in the State courts, it may entertain a prosecution of them before itself. The vindication of Federal rights, both by civil and criminal processes, in the Federal courts is as old as our Constitution. In Virginia v. Rives (100 U.S. 313) the Supreme Court said (p. 318):
"Congress by virtue of the fifth section of the fourteenth amendment may enforce the prohibitions wherever they are disregarded by either the legislative, the executive, or the judicial department of the State. The mode of enforcement is left to its discretion. It may secure the right—that is, enforce its recognition-by removing the case from a State court in which it is denied into a Federal court where it will be acknowledge. Of this there can be no reasonable doubt. Removal of cases from State courts into courts of the United States has been an acknowledged mode of protecting rights ever since the foundation of the Government. Its constitutionality has never been seri. ously doubted,"
In conclusion, we revert to what was said at the beginning of this brief; namely, that lynching no longer can be said to be a matter purely of local or State concern. It has become a grave national menace, injurious to our country's security, its institutions, and its soverign influence both at home and abroad. Recent decisions by the Supreme Court have established that the ('onstitution is not a rigid thing, incapable of adaption to new conditions and dangers, and that it must, from time to time, be interpreted and applied as a living and feasible principle and theory of government capable of protecting, through plenary police power, its own security and the security and moral and economic welfare of its citizens. It is true that new conditions cannot create new constitutional powers, but new conditions may, through interpretation in the light of new necessities, bring into being new exercises of inherent powers.
Let it not be forgotten that in Hoke r. U.S., 227 U.S. 308, the Supreme Court said (p. 322) :
"Our dual form of government has its perplexities, State and Nation having different spheres of jurisdiction, as we have said, but it must be kept in mind that we are one people; and the powers reserved to the States and those conferred on the Nation are adapted to be exercise, whether independently or concurrently, to promote the general welfare, material and moral."
And in Er parte Siebold, 100 U.S. 371, the Supreme Court, through Mr. Justice Bradley, said (p. 395):
“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 erery foot of American soil the powers and funetions that belong to it."
Dated, New York, March 24, 1934.
CHARLES H. TUITLE
15 Broad Street, New York, N.Y. Senator Lax Irrs. We will not call Mr. William H. Thompson as the first witness
TESTIMONY OF WILLIAM H, THOMPSON
The witnera: duly sworn br Senator Van Surs)
Sinater Tax Suns Will you state your name. residence, and busines
Mr. Trore. My rare is William H. Thompson: pharmacist; Prince Anne, 13.
Senator lux Nuts How long hare rou lived in Princess Anne! Mr. TRONIX Seven years and three months to be exact.
Senator Max Nors You are familiar with the fact that in his testimonr before this suhommittee Attorner General Lane, of Maryland, nanni rou as one of the alleged lynchers in what is known as the “ Princess Anne lynching"}
Mr. TRINNOx. Yes sir.
Senator Van Nuys. Such accusation was based upon reports of members of the State police. You understand that?
Mr. THOMPSON. Yes, sir.
Senator Van Nuys. You have requested to be heard by the subcommittee? Is that correct?
Mr. THOMPSON. Yes, sir.
Senator Van Nuys. You may proceed in your own way, Mr. Thompson, with anything you have to say.
Mr. THOMPson. I appreciate this opportunity. It is the first one I have had of setting forth my side of this thing. I have never, of course, had an opportunity to do it. If you will kindly look at these letters which I hand to you, from reputable men, it will only take a few seconds to see what my standing is in that community.
Senator Van Nuys. The committee will probably do that in executive session. These are letters vouching for you as a citizen and for your veracity?
Mr. THOMPSON. Yes, sir.
Senator Van Nuys. All right. The committee will make these letters a part of their files, but not a part of the record, with your permission.
Mr. THOMPSON. All right.
Senator Van Nuys. You may make any statement you may care to make.
Mr. THOMPSON. I am innocent of any charge pertaining to the lynching of George Armwood. That is the reason why I am here: I was not in town, was not in Princess Anne, when Armwood was lynched. I can prove it by witnesses I have with me, also by affidavits from people in Salisbury, where I was visiting the moving pictures. There were two State police who got my picture from the paper. I was on the coroner's jury the next morning. They got my picture from the newspapers. I do not know those two State police, but I do know several State police who were there. Those police whom I know did not see me. Two police whom I never saw identified me by a picture in the newspaper. I am here to prove, with your permission, that I was not in that mob and took no part in any lynching at all.
Senator Van Nuys. Were you in the city of Princess Anne the night of the alleged lynching? Mr. THOMPSON. After it was over; yes, sir. Senator Van Nuys. What time did the lynching occur? Mr. THOMPSON. Somewhere about 9 o'clock, as I understand. Senator VAN NUYS. On what date? Mr. THOMPSON. October 18, 1933. Senator Van Nuys. Where were you at that time?
Mr. THOMPSON. At the time he was lynched I was in Salisbury, probably leaving the moving pictures with my wife.
Senator Van Nuys. Was anyone else with you?
Senator Van Nuys. Where did this lynching take place at the jail or where?
Mr. THOMPSON. That I could not tell you.
after you left the moving pictures? Mr. THOMPSON. We got back to Princess Anne about 9:45, a quarter of 10. The Washington Hotel was about a block from my store and that was as close as we could get to the store for the people and cars. I thought someone was making a speech or something. I told my wife to drive the car around home and I would go to the store. I had left two girls working in the store when we went to the movies. When I arrived at the store is when I found out what was really going on from the crowd out front.
Senator Van Nuys. What did you observe at that time?
Mr. THOMPSON. From the time I left the car, which was probably a block from the store, I didn't see but one man I recognized. Of course I didn't look for anybody particularly that I knew.
Senator Van Nuys. How many men were around in this crowd?
Mr. THOMPSON. That would be hard to estimate. I would say, at a rough guess, maybe a thousand.
Senator Van Nuys. Was that after the prisoner had been taken from the jail or before!
Mr. THOMPSON. That was after.
Senator Van Nuys. How long were you in and about that crowd that evening?
Mr. THOMPSON. I was not in the crowd at all. I stayed in my store.
Senator Van Nuys. How long did the crowd remain at that point!
Mr. THOMPSON. I could not say anywhere near accurately. I might guess around 10:30 or 11 o'clock.
Senator Van Nuys. What time did you get home?
Senator Van Nuys. How far was the moving-picture show which you attended from the scene of the lynching?
Mr. THOMPSON. I would say about 14 or 15 miles.
Senator Van Nuys. Oh, the picture house was not in Princess Anne!
Mr. THOMPSON. No, sir.
Senator Vax Nuys. Were you subpenaed before any grand jury or committing magistrate as a witness?
Mr. THOMPSON. I was taken to Baltimore from Princess Anne.
Senator Van Nuys. But you were not taken before any committing magistrate in Salisbury or Princess Anne, were you?