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 duty was orginally assumed by the States and it still remains there.

The next case to which I desire briefly to invite your attentionSenator CoSTIGAN (interposing). Representative Sumners, before you proceed, may I inquire whether you are familiar with the opinion of Mr. Justice Bradley in the Cruikshank case, reported in First Wood's Circuit Court Reports, at page 315?

Representative SUMNERS. No; I do not believe I have that. I was reading from the opinion of the Supreme Court in that case. Senator CoSTIGAN. The case was appealed, was it not?

Representative SUMNERS. Yes; it was.

Senator CoSTIGAN. According to the language stated in a brief which I hold in my hand, prepared in 1922 by Mr. Moorfield Storey of Boston, who gave an opinion on similar legislation, Mr. Justice Bradley in that case in the lower court said:

It seems to be firmly established by the unanimous opinion of the judges in the above-quoted case that Congress has power to enforce by appropriate legislation every right and privilege given or guaranteed by the Constitution. The method of enforcement, or the legislation appropriate to that end, will depend upon the character of the right conferred.

Is there anything in the opinion of the Supreme Court which appears to overrule that statement of Mr. Justice Bradley?

Representative SUMNERS, I think it clearly overrules it. However, I am at some disadvantage in presenting this argument. I examined the question 10 or 12 years ago and I have not had time carefully to examine it since. However, I think there is no question that the decision of the Supreme Court in that case was very definitely contrary to the opinion of the lower court.

THE HARRIS CASE (106 U.S. 629)

The Harris case was a lynching case (106 U.S. 629). Harris and 19 others were indicted for taking from the custody of a deputy sheriff a number of persons. It was charged-and by the way, this is about the sort of indictment which would arise under this bill if it were enacted into law. It was charged that the prisoners had

Been duly arrested

sheriff of said county of the laws thereof

were then and there in the custody of a deputy were entitled to due and equal protection that the said R. G. Harris, and 19 others, did then and there

naming them, with certain other persins unlawfully conspire toutler and take these prisoners from the custody of the officers, beating, bruising. Wounding, and otherwise ill-treating them, contrary to the form of the statutes,

I believe that would be the sort of indictment that would be drawn under this bill if it were enacted into law. It is rather interesting. too, that that section is still the law-no, I believe it was later repealed. The opinion was rendered by Mr. Justice Woods, who, after disposing of the contentions of the Government with reference to the constitutionality of the action under other provisions of the Constitution, said:

It is, however stret dously insisted that the key Sat, ŋnder consideration finds its warra,t it ́e first and tith sectie s of De Surtees la amendment. The first setra declares

Ber S all 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 law.

After quoting the authorities in the Slaughterhouse case, the Cruikshank case, Virginia v. Rives (100 U.S. 313), the court said:

These authorities show conclusively that the legislation under consideration finds no warrant for its enactment in the fourteenth amendment. ** In the indictment in this case, for instance, which would be a good indictment under the law if the law itself were valid, there is no intimation that the State of Tennessee has passed any law or done any act forbidden by the fourteenth amendment. On the contrary, the gravamen of the charge against the accused is that they conspired to deprivate certain citizens of the United States and of the State of Tennessee of the equal protection accorded them by the laws of Tennessee.

The court concluded, referring to the particular section of the fourteenth amendment:

It was never supposed that the section under consideration conferred on Congress the power to enact a law which would punish a private citizen for an invasion of the rights of his fellow citizen conferred by the State of which they were both residents on all its citizens alike, we have, therefore, been unable to find any constitutional authority for the enactment of section 5519 of the Revised Statutes. The decisions of this court above referred to leave no constitutional ground for the act to stand on.

That decision is on all fours with the questions that would arise under an indictment, if this bill were enacted, seeking to punish private persons. It is absolutely on all fours.

Senator CoSTIGAN. Does it interrupt you to have me comment as you proceed?

Representatives SUMNERS. Not at all.

Senator CoSTIGAN. May I say that Mr. Moorfield Storey, in the brief to which I have already referred, on page 25 of the Senate committee's report on the Dyer bill, submitted by Senator Shortridge, of California, is quoted as having said this in the Harris case (106 U.S. 639):

When the State has been guilty of no violation of its provisions; when it has not made or enforced any law abridging the privileges or immunities of citizens of the United States; when no one of its departments has deprived any person of life, liberty, or property without due process of law, or denied to any person within its jurisdiction the equal protection of the laws; when, on the contrary, the laws of the State, as enacted by its legislative and construed by its judicial and administered by its executive departments, recognize and protect the rights of all persons, the amendment imposes no duty and confers no power upon Congress.

Mr. Moorfield Storey adds this:

But where these conditions do not exist Congress must act.

My recollection is that the Supreme Court, in the Harris case, made an affirmative statement to that effect, supporting the view that Mr. Moorfield Storey sets forth.

Representative SUMNERS. I am under the disadvantage of not having made a recent examination of the authorities; but I feel perfectly sure you will not be able to find anything in the Harris case indicating that Congress or the Federal courts may sit in judgment with reference to the conduct of officers of a State and provide punishment for them if they have not displayed the sort of vigilance or given the sort of protection which the Congress feels the officers of the State should give.

We have a Government, a part of the powers of which are lodged in the States and a part of the powers of which are lodged in the Federal organization. In the beginning it was recognized that there are some things which the States can do better than the Federal organization. Included within those things was the exercise of the police power of government, the protection of the citizens of the country. The plan has made the public officials in the final analysis answerable to the people of the States. It seems not to have been contemplated in the scheme, even as modified by the fourteenth amendment, that we had established a Federal guardianship over the States and subjected State officers and citizens of the States to correction and punishment by those of us who happen to sit in Congress or those of us who happen to sit in appointive places on the Federal bench.

I believe that is the fundamental notion that has guided the courts in the decisions, one of which I have just read.

I go further, if I may make a statement for the consideration of you gentlemen with legislative responsibility. Even if that were not true insofar as the scheme of constitutional arrangement is concerned, in the long run it would prove to be the best sort of government. I believe, as fully as I believe anything in the world, that in the very nature of things, mob violence being a thing that springs up almost instantly in a community, there can be no safe protection in the long run to the person in danger other than the people of the community where the situation develops. It will be found from statistics that under the responsibility of the States there has been a rather rapid diminution of lynchings in America.

Furthermore, in that connection, if I may make this brief observation, whenever legislators who are interested in bringing about a given result discover that progress is being made by the people under the sense of local responsibility, particularly in view of some of the experiences we have had in the shifting from State to Federal Government of responsibility, they do not do a serviceable thing to those whom they would protect when they do that sort of thing which is proposed by this bill.

In the Civil Rights case (109 U.S. 3)—and there are a number of those cases, as Senators will recall-it was said:

It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment. It has a deeper and broader scope.

It is this to which I would like to direct your especial attention: It nullifies and makes void all State legislation and State action of every kind which impairs the priveleges and immunities of citizens of the United States or which injures them in life, liberty, or property without due process of law, or which denies to any of them the equal protection of the law

To adopt appropriate legislation for correcting the effect of such prohibited State laws and State acts and thus to render them effectually null, void, and innocuous. This is the legislative power conferred upon Congress, and this i→ the whole of it.

That is what the Supreme Court said about it.
Again the Court said, at page 13:

It is absurd to affirm that, because the rights of life, liberty, and property (which include all civil rights that men have) are by the amendment sought to be protected against invasion on the part of the State without due process of law. Congress may therefore provide due process of law for their vindication

in every case; and that because the denial by a State to any persons of equal protection of the laws is prohibited by the amendment, therefore Congress may establish laws for their equal protection.

The Supreme Court said that sort of thing is absurd. Proceeding further, and referring to the civil rights, the court said:

This is not corrective legislation; it is primary and direct; it takes immediate and absolute possession of the subject of the right of admission to inns, public conveyances, and places of amusement. It supersedes and displaces State legislation on the subject or only allows it permissive force. It ignores such legislation and assumes that the matter is one that belongs to the domain of national legislation.

If the court, in construing the bill now before the committee if it were enacted into law, should hold the same character of notions of constitutional construction as were pronounced by the court, it could take this decision and copy it as its decision in holding this proposed law unconstitutional.

The next case to which I want to direct your attention is the case of James v. Bowman (190 U.S. 127). That opinion was rendered by Mr. Justice Brewer. In that case the authorities from which I have quoted were reviewed, approved, and it was again declared that Congress possesses no power under either the thirteenth, the fourteenth, or the fifteenth amendments to enact such legislation as is proposed by the bill now pending before this committee. The Riggins case is rather an interesting case.

Senator VAN NUYS. Where is that case to be found?

Representative SUMNERS. It is found in 134 Federal Reporter. There were two or three cases that made up this determination. The Riggins case was a case of prosecution under sections 5508 and 5509 of the Revised Statutes. Riggins was indicted with a number of others for taking one Maples from the custody of the sheriff and a detachment of National Guard troops at Huntsville, Ala., and hanging him. In that case Judge Jones, the district judge, sitting on the circuit court, rendered the opinion. The opinion he rendered in that case was in line with the philosophy and plan of this bill. That case went to a higher court. I am not certain, either, whether it was that identical case or a companion case, but I know that this opinion by Judge Jones was reversed. The court of appeals held in that case:

When a private individual takes a person charged with crime from the custody of the State authorities to prevent the State from affording him due process of law and puts him to death to punish the crime and to prevent the enjoyment of such right, it is violent usurpation and exercise, in the particular case, of the very function which the Constitution of the United States itself, under this clause, directs the State to perform in the interest of the citizen. A State officer in attempting to afford due process in a particular case is discharging a duty imposed upon him as the representative of the State by the Constitution of the United States for the benefit of its citizens. The prisoner also, while confined and being protected against lawless violence, that he may have a trial according to the law of the land, is in the exercise or enjoyment of a right given him by the Constitution. Congress may protect the right

This is what the court held that was overruled:

Congress may protect the right by protecting the performance of the duty and the rights which flow from it, by declaring the violations of State laws on the subject constitute offenses against the United States.

That is what the court held, and that was overruled by the upper court.

The constitutional right of the citizen cannot bear fruit or ripen into the enjoyment of due process at the hands of the State if lawless outsiders prevent State officers from performing their duty concerning it. The right, privilege, or immunity of a citizen of the United States under this clause, which is to have his State give him the benefit of due process of law, therefore necessarily carries with it and includes in it the right, privilege, or immunity to enjoy freedom, exemption from lawless assault, which supervenes between the State and the performance of its duty, and by such violent interference prevents the citizen having, when the State is endeavoring to afford it, due process at the hands of the State.

As stated this is a case where a mob took this person from the officers of the State.

The court further held:

The court does not doubt that Congress has power to punish the acts charged in the indictment; that is, the act of taking a person from the custody of an officer and lynching him, and that sections 5508 and 5509 of the Revised Statutes apply to them and are appropriate" legislation to that end. The result is that the writ must be discharged and the prisoner remanded to the custody of the marshal.

66

One of the arguments made by the proponents of the bill, as I understand it, is that stated in the first sentence of the quotation just read:

The court does not doubt that Congress has power to punish the acts charged in the indictment.

The court which rendered this opinion later, in the companion Powell case, he being one of the conspirators, had to reverse itself, had to overrule its opinion in the Powell case, and in that reversal was sustained by the Supreme Court of the United States. I am in some confusion as to the facts, but as I recall this decision of the circuit court of the Riggins case went to the Supreme Court. While application for a discharge on habeas corpus was pending in the Supreme Court, the Hodges case (203 U.S. 1) came up from the State of Arkansas, and in that case the Supreme Court reversed, in effect, the holding of the lower court, and when the next case came up, to Judge Jones court, the Court reversed itself. I am ashamed to be so poorly prepared, but you appreciate the condition under which we are working now.

Gentlemen of the committee, I next invite your attention to the sections of the United States statutes to which I have referred. This is rather interesting, gentlemen of the committee because this is about the same sort of legislation that would develop under the bill now before you. I mean it is about the same sort of legislation that is proposed in the bill. Section 5508 of the Revised Statutes provides:

If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than $5,000 and imprisoned not more than 10 years; and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States.

Section 5509 provides:

If in the act of violating any provision in either of the two preceding sections any other felony or misdemeanor be committed, the offender shall be punished for the same with such punishment as is attached to such felony or misdemeanor by the laws of the State in which the offense is committed.