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incite public officials to do their duty more fearlessly than under present conditions!

Mr. COLBURN. I think it would have a salutary effect; yes, sir.
Senator Van Nuys. Thank you.
(Witness excused.)


Senator Van Nuys. The committee will now stand in recess until 2 o'clock this afternoon, when Representative Sumners of Texas will appear in opposition to the bill from a constitutional standpoint.

(Thereupon, at 1 p.m., the committee took a recess until 2 p.m.)


At the expiration of the recess, at 2 p.m., the hearing was resumed. STATEMENT OF HON. EDWARD P. COSTIGAN, A SENATOR FROM


Senator Van Nuys. Senator Costigan desires to make a brief preliminary statement before we call upon Representative Sumners.

Senator COSTIGAN. Mr. Chairman, in view of the testimony given at the morning session, with respect to a lynching on the Eastern Shore of Maryland, and because of certain comments made by the last preceding witness, I desire to state that I have before me a compilation prepared by the National Association for the Advancement of Colored People, which purports to detail the lynchings which occurred in this country in 1933 and in January 1934. Without placing the entire list in the record, because of permission already given by the chairman for the introduction of a more comprehensive recital, I venture to read from this tabulation two or three instances of alleged lynchings and the causes assigned therefor.

On June 13, 1933, at Newton, Ga., the body of T. J. Thomas, a middle-aged Negro, was found hanging to a tree. No reason for the hanging could be given, no clews were found, and no arrests were made.

On June 16, 1933, at Newton, Ga., the body of Richard Marshall, middle-aged Negro, was found hanging from a tree. Nine bullet holes were discovered in the corpse. No reason for the lynching, the second within 2 days, could be given.

On August 10, 1933, at Thelma, Ala., Joe Solde was taken to the woods and beaten to death by four white men. He was charged with stealing a cow.

On August 28, 1933, at Decatur, Ala., James Royal was slain by a mob seeking another Negro.

I read these instances of reported lynchings in confirmation of the admission of the last witness that at times trivial causes and in some instances, if these recitals are true, no cause at all have been responsible for such violent invasions of constitutional rights. Other instances will doubtless be developed in supplemental testimony when the larger list is filed.

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Mr. Chairman, may I also take this occasion to ask to have incorporated in the record a letter signed for Mr. and Mrs. Maurice Holmes, written by Mrs. Holmes, which reached me early in January of this year. The introduction of the pending bill was preceded by the lynching of two young men at San Jose, Calif. The letter which I have before me was transmitted to me by the mother of one of these young men. It is in such form that I think it appropriate to offer it to the committee. Indeed, with the consent of the committee, I should like to read it.

Senator Van Nuys. Certainly; proceed.
Senator COSTIGAN. It is as follows:

SAN JOSE, CALIF., December 30, 1933. Senator COSTIGAN,

Washington, D.C. DEAR SENATOR: We wish to commend your effort in behalf of an antilynching law proposed to come before Congress this new year.

I want to say that our son, Jack Holmes, was lynched here in San Jose, November 26. He has a wife and two children left penniless-nothing seems to have been provided for them, or in such a case in this State to our present knowledge.

A committee of citizens conducted the lynching, one evening paper printed in an editorial. Therefore, the officers here in San Jose are not doing any. thing to apprehend the lynchers headed by youths they filled full of whisky. However, representatives of the American Civil Liberties Union of New York are working on the case. One youth is arrested as ringleader-there were six-as the lynching was deliberately planned. The officers did nothing definite to protect their prisoners as we parents were certain they would do. They neglected their sworn duty.

Furthermore, we could have proven our son innocent. We were at his home at 7 p.m., and our son was at home at that time when crime was supposed to have been committed on San Mateo Bridge which is an hour's ride from San Jose. The kidnaped young man left his father's store at 5 minutes to 6. It would have been a physical impossibility to get back by 7 o'clock had he our son been connected with the affair. Our son had been with this Thurmond (known to have been periodically deranged) for a couple of days demonstrating his car to him. He Thurmond expected to buy it the day of the arrest.

We feel the terrible injustice keenly. Family left without support-young man's salary just sufficient to carry on from week to week. But they were robbed of their support. We may not have been able to prove his innocence in our city because of public opinion. This however is greatly changed.

I sincerely hope your measure nobly written becomes a law soon as it can be presented to Congress. Very respectfully




Senator Van Nuys. We have with us this afternoon Hon. Hatton W. Sumners, a Representative in Congress from the State of Texas, who desires to submit an argument, as I understand it, against the constitutionality of the proposed measure. Is that correct, Mr. Sumners?

Representative SUMNERS. I would like, if the committee will permit me, to make some general observations and to discuss the constitutional features of the bill if the committee desires.

Senator Van Nuys. The subcommittee will be delighted to have you proceed in your own way.

Representative SUMNERS. Very well.

Mr. Chairman, Senator McCarran, and Senator Costigan, I believe that practically everybody in this country would like to see lynching suppressed. There is a very fundamental difference among people who have studied the matter as to how best to proceed.

Lynching is called an American institution. Of course, that is not exactly true, but we certainly have been addicted to the habit in this country. I am much inclined to believe that the numbers of lynchings which have taken place is due somewhat to the peculiarity of our representative form of government in this country and its growth as a government. It differs from what was the situation in most countries. In this country we saw population preceding government all the way from the eastern seaboard to the Pacific Ocean. In most other great migrations government has gone with the people, because it was necessary that they should move in considerable numbers and organized in order to drive out or conquer the inhabitants found there. In this country, due to the sparcity of inhabitants, their inferiority in arms, and so forth, that was not necessary. When those groups of people moving westward got far beyond established government, home-made governments sprung up. I do not believe that anybody who has ever written about our American system of government has given attention to that very interesting and at least temporarily important part of our governmental development. There were no sheriffs, no legislatures, but an effective sort of democracy sprung up in these communities. They protected life and property, at least in a way, and made those sections of the country, where there was no organized government, very safe sections in which to live.

During that period of development what are known as lynchings grew up as a sort of judgment executed by the people of the community. When I was prosecuting attorney in Texas a long time ago that government which I have just mentioned, and which was established in Texas before the government was established whose laws it was my duty to enforce, was giving way. In some respects it had not yet entirely disappeared though it is about gone. I know that a man of self-respect would have been ashamed to have litigated a matter of violence done to his person or to his family when I first went to Texas. There are some very interesting things about that government which might be told, but of course we cannot go into details. I merely mention that in passing to direct your attention to that peculiar part of our governmental history which is associated in a definite sense with lynching in this country.

I think another reason for lynching in this country has been that when our ancestors came to this country many of them were fugitives from governmental oppression. We were so anxious to protect an individual against the crimes of government that we failed properly to protect the individual against the crimes of other individuals. The criminal has too great advantage under our procedure. With us lynchings in proportion to population is greater in the rural communities where the police power does not extend. In these communities the people afford for themselves practically all the police protection they have.

If the power of these home-made governments could have continued in the hands of the pioneers who were instinctively just and courageous, there would not have been so much trouble about it, perhaps. But they have given way, and the hoodlum has entered into the situation. That makes it doubly necessary that the people of America shall turn their faces against lynching.

I do not want to be understood as taking the position of defending lynching ever in this country, but I make a statement of facts. There is usually an explanation for everything, and I think that is in part an explanation for lynchings in this country.

I know that in my section of the country I have watched the changing sentiment as the pioneer has disappeared from control and police protection has improved. I remember the time when a man was taken out of the courthouse and mobbed. The judge raged in vain because nobody paid any attention. The people thought the man ought to have been mobbed. About 10 years ago a mob undertook to take a man out of jail in Dallas. The sheriff shot and, I believe, killed two or three people. It was sought to stir up public opinion against the sheriff, but the people stood by him. Public opinion was with him.

I have been very much interested to observe in these hearings testimony, particularly with reference to the attitude and the sentiment of the people of the South against lynching. A good deal of weight seems to have been given to that in this hearing. I can testify to that change and I do not want anything done to interrupt its development. That is why I am opposing this bill.

We come, then, gentlemen, to the practical proposition. We have had some experience in what results when we turn responsibility over to the Federal Government. Coordinate responsibility between the Federal Government and the States does not seem to work. It is my deliberate judgment, coming from a section of the country where this crime has been all too prevalent, that nothing could deter the growth of sentiment in the Southern States, of the sense of local responsibility more than to have Uncle Sam, the Federal Government, enact such a law as this. What would such a law as this do?

First, among the people who feel it their responsibility and who have been arousing sentiment in that section of the country, if we are to judge by our past experience, such as came with the eighteenth amendment, the tendency would be for them to cease to feel the exclusive and sole responsibility. They will take the attitude of, "Oh, let Uncle Sam do it.” That is my judgment.

Then, to have a Federal marshal go into a community and undertake to make effective the provisions of such a bill as this, I belieye would bestir a resentment which would reflect itself in the jury box when you finally had to come to try those people before a jury in any of the communities in that section of the country. There cannot be any doubt about it, in my opinion. That is my frank and candid judgment.

Of course, the committee is fully advised as to the provisions of the bill and what it attempts to do. The bill attempts not to nullify, not to hold as void the actions of the State, but it attempts to establish a part of a municipal code. There is no constitutional warrant for such an attempted governmental overlordship.

The first of the great opinions dealing with the fourteenth amendment was in the Slaughterhouse case, which came up from New Orleans. With the permission of the committee, I am going to read a very brief excerpt from that case.

The Supreme Court, in handing down its opinion in the Slaughterhouse case (16 Wall.) said:

It would be the vainest show of learning to attempt to prove by citations of authority that prior to the adoption of the recent amendments

I believe this was about 3 years after the adoption of the amendment

no claim or pretense was set up that those rights (rights of citizens) depended on the Federal Government for their existence or protection, beyond the very few expressed limitations which the Federal Constitution imposed upon the States. But with the exception of these and a few other restrictions the entire domain of the privileges and immunities of citizens of the States, as above defined, lay within the constitution and legislative power of the States without that of the Federal Government. “Was it the purpose of the fourteenth amendment", the Court asked, “ to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?"

The Court, answering its own query, said:

When the effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character, when in fact it radically changes the whole theory of the relations of the State and Federal Governments to each other and of both of these governments to the people; the argument-illustrating what could be done under such a power, as I have undertaken to illustrate what could be done under this bill-has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt. We are convinced that no such results were intended by the Congress which proposed these amendments nor by the legislatures of the States which ratified them.

The next one of the important decisions was in the Cruikshank case, decided in 1875 (found in 92 U.S. 542). From this case I quote briefly :

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,

add anything to the rights which one citizen has under the Constitution against another. Every republican government is in duty bound to protect all its citizens in the enjoyment of this principle if within its power.

That case goes on to hold that the power contained in the fourteenth amendment was a limitation upon the power of the States.

This prosecution in the Cruikshank case was under a statute which providedIf two or more persons shall band or conspire together

with intent to violate any of the provisions of this act

or intimidate any citizen within intent to prevent or hinder his free exercise of enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States * * shall be held guilty of felony, and, on conviction thereof, shall be fined or imprisoned, or both, at the discretion of the court.

('ruikshank and his associates were charged in the District Court of Louisiana with engaging in a conspiracy in violation of this section, and were convicted. Upon review by the Supreme Court it was held that the fourteenth amendment does not undertake to create any additional guaranty as among the citizens of the States. The court held, as I just quoted, but let me quote it again for the sake of emphasis :

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, * * add anything to the

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