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There can be no question that in every lynching case where a person is killed it is murder under the laws of the States. Section 5509 was the law at the time this prosecution in the Powell case was had. It provided, as you observe, in those cases where punishment for murder would be by death or life imprisonment that that punishment could be inflicted by the Federal court. Those sections are the sections which were held not to be sustained by the Constitution.
Senator COSTIGAN. May I ask how you construe the last section of the fourteenth amendment which gives Congress power to enforce that amendment by appropriate legislation.
Representative ŠUMNERS. I have here the provision of the Constitution that was submitted and adopted, as well as the language submitted or suggested in lieu of that finally adopted. It is rather interesting that his was suggesed in lieu of the language adopted :
Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens of the several States, and to all persons in the several States equal protection of the right of life, liberty, and property.
That language was rejected and the language now in the Constitution was adopted.
Senator COSTIGAN. The exact language was: The Congress shall have power to enforce by appropriate legislation the provisions of this article.
Are you familiar with the case of Ex parte Virginia?
Representative SUMNERS. Yes; I am. That is rather an interesting case. It is found in 100 U.S., as I recall.
Senator COSTIGAN. Yes. Representative SUMNERS. That is a case where the county judge of the county, in drawing a jury panel, excluded colored people from the panel
. The State of Virginia, by its legislature, ratified that act, as I remember it—and I do not mean to say this had a legal bearing upon it—and joined in the suit or was made a party to the suit. That was the case where this judge, exercising the power of the State, in violation of the duty which he owed, and exercising the clear power of the State, violated the Federal law and Constitution by denying equal protection to colored people, and I believe was convicted. I reconcile that as being the act of the State, because the States had to act through their officials. I do not know, of course, what the court would hold in a case of that sort where a private citizen was being tried if State official and he join in a conspiracy. I would not say that I have any certainty of judgment that the court would not hold him guilty.
There is another case that came up from Los Angeles, a telephone case.
Senator COSTIGAN. Home Telegraph & Telephone Co. v. Los Angeles (237 U.S. 278).
Representative SUMNERS. Yes. That was clearly the act of the State, because in that case the State legislature conferred upon the city of Los Angeles all the power to regulate rates which the State of California had within that territory. They not only put the rate into effect but were actually operating to deprive those people of their property. That was in violation of the anticonfiscatory provisions of the Constitution.
Senator COSTIGAN. In your judgment would that be regarded as a State act?
Representative SUMNERS. I think there is no question about it.
Senator COSTIGAN. Let me call your attention to the headnote in that case, which reads as follows in part:
Under the fourteenth amendment the Federal judicial power can redress the wrong done by a State officer misusing the authority of the State with which he is clothed. Under such circumstances inquiry whether the State "bas. authorized the wrong is irrelevant.
The court even went beyond the contention which you are making.
Representative SUMNERS. Yes. The defense pleaded in that case that he could not have been doing the act of the State because the State Constitution prohibited confiscatory acts with reference to private property. But he was doing it. He really was doing it. What the Supreme Court did in that case was to nullify that State act. I do not believe that anybody ever questioned the power of a Federal court to hold as void a State act done in violation of the Federal Constitution.
Senator COSTIGAN. May I also ask your comment on a statement in Ex parte Virginia (100 U.S. 339), which we discussed a moment ago, I believe at page 346. Mr. Justice Strong, speaking for a unanimous court, said:
But the constitutional amendment was ordained for a purpose. It was to secure equal rights to all persons; and to insure to all persons the enjoyment. of such rights, power was given to Congress to enforce its provisions by appropriate legislation. Such legislation must act upon persons, not upon the abstract thing denominated a State, but upon the persons who are the agents of the State in the denial of the rights which were intended to be secured.
Representative SUMNERS. My reply to that is that it seems to me, Senator Costigan, very clear that any obscurity or any uncertainty as to the holding of the Supreme Court growing out of that language was made clear in the decisions of the Supreme Court which followed that one and to which I have made reference.
I believe I have said all I care to say. I will submit myself to questions of the committee if there are any.
Senator COSTIGAN. Mr. Chairman, I desire to express my personal appreciation to Representative Sumners for his courteous presentation of his views.
Representative SUMNERS. I speak in all sincerity and I speak as a man from the South when I say that I know in my time there has been a tremendous development of sentiment in the South among the people there against lynching. They feel it is their job to stop this thing that has been a disgrace to that section of the country. I believe every State is making very substantial progress in this respect. I think they are. We have had this flare-up recently. There have been a lot of pretty bad crimes committed. The people are disposed to take direct action, and I am not sure that the spirit of the people is not a bit rebellious right this minute.
I say to the friends of the legislation that they do a serious thing when they do anything that would tend to lessen the sense of absolute responsibility among the people of the communities or the States who, in the very nature of things, are the only dependable defenders of the person who is in danger of violence at the hands of a mob. The Federal marshal is too far away and the Federal court is too far away. The thing would happen before ever they
got into the picture. If this Federal intervention takes place this sense of local responsibility would be reduced with a nonsustaining, nonconsenting attitude of public opinion. This coercive legislation by the Federal Government, even if held constitutional, I am afraid I am sure would operate very directly against the interests of those whom you seek to protect.
I think you ought to pay a great deal of attention to the people who come from those sections of the country where this difficulty is greatest.
I thank you very much, Senator Costigan, for your courteous attitude, and I thank you, gentlemen of the committee, for having Jistened to my very disconnected discussion of some of the constitutional aspects of the proposed legislation.
Senaor Van Nuys. We appreciate your presentation very much and thank you for your very enlightening observations.
Senator COSTIGAN. Before you retire, Representative Sumners, may I ask one other question.
Representative SUMNERS. Certainly.
Senator COSTIGAN. Some distinguished constitutional lawyers have expressed the view that such legislation is constitutional, first, under the fourteenth amendment, which has been discussed; second, under the fifth amendment; and, third, under what has been termed the • Responsibility for peace in the United States”, which Congress is under obligations to maintain. The general doctrine rests on such an authority as Ex parte Seibold (100 U.S. 171), and other cases. Do you care to express an opinion in that field?
Representative SUMNERS. No, sir; I am not familiar with that. This is my own notion about it. I have not the slightest doubt that there is no constitutional warrant for that provision of the bill by which to seek to levy a fine upon a county. I have not the slightest doubt that it is not constitutional. The only provision of the bill about which I have any doubt as to its unconstitutionality is that provision of the bill which would authorize prosecution of an officer of the State, an agent of the State, who, by his act, denys equal protection of the law.
Senator McCARRAN. You do that on the basis that he is the State and acts for the State?
Representative SUMNERS. Yes. That is the only provision about which I have any uncertainty at all.
Senator Van Nuys. Are you familiar with the fact that similar State statutes, levying a penalty upon counties, have been repeatedly upheld by the courts of last resort?
Representative SUMNERS. I have no doubt that a State legislature could do that. I have not the slightest doubt about that.
Senator Costigan. What would be your comment upon this statement of the well-known attorney, Herbert K. Stockton [reading]:
Suppose the constitutionality of the act doubtful. The evil is rampant, it is hellish in particular instances, it is dangerous to the Nation in its increasing threats of race war and mob rule. To cure such a cruel cancer in our body politic, every curative force should be set in motion. Even if the court should make vain your efforts, it is tremendously important that the most representative body in the world should go on record as opposing lynching and desiring to stamp it out.
Representative SUMNERS. I am glad you suggest that point. It is really the thing in which we should be interested now. What 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:)
Number Population Population of persons per person
1889. 1890. 1891. 1892. 1893 1894. 1895. 1896. 1897 1898 1899. 1900. 1901 1902. 1903. 1904 1905 1906. 1907 1908. 1909 1910. 1911.
61,775, 121 63, 056, 438 64, 361, 124 65, 665, 810 66, 970, 496 68, 275, 182 69, 579, 868 70, 884, 554 72, 189, 240 73, 493, 296 74, 798, 612 76, 129, 428 77, 747, 402 79, 365, 396 80,983, 390 82, 601, 384 84, 219, 378 85, 837, 372 87, 455, 366 89, 073, 360 90, 691, 354 92, 267, 080 93, 682, 189
352, 000 692,000 331, 000 290, 000 431, 000 375,000 390,000 567, 000 445, 000 579,000 686, 000 753,000 575,000 844, 000 778,000
1912 1913. 1914 1915. 1916. 1917 1918 1919 1920 1921 1922. 1923. 1924. 1925 1926. 1927 1928 1929 1930. 1931. 1932 1933.
64 48 54 96
50 67 80 60 62
91 194 226 153 182 178 125 162 127 109 101 135
94 104 86 65 68 62 100 89 90 71
960,000 1, 295,000 1, 262, 000 1, 410, 000
890,000 1,019, 000 1,025,000 1, 319,000
95, 097, 298 96,512, 407 97,927, 516 99, 342, 626 100, 757, 735 102, 172, 845 103, 587, 955 105, 033, 065 106, 543,031 108, 207, 853 109, 872, 675 111, 537, 497 113, 202, 319 114, 867, 141 116,531, 963 118, 196, 785 119, 861, 607 121, 526, 429 123, 191, 000 124, 070,000 124, 822,000 125, 693, 000
33 16 17 30 16
1, 486, 000 2,011, 000 1,815, 000 1,035, 000 1,938, 000 2,013, 000 1, 546, 000 1, 313, 000 1,926, 000 1,745, OCO 1,928, 000 3, 390,000 7,075,000 6, 786.000 3,881, 000 7, 387,000 10, 896,000 12, 152,000
5, 966,000 9,514,000 15,603, 000 6, 285,000
10 21 13 8 20
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 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 antllynching 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 million of population the population was taken as millions in round numbers as the hundred thousands were above or below 500,000.
Senator Par Sts. Now Tos are na ting man the soz jact of the policy of this tri of legatiua!
Bepresentative Saxan Yes: I am.
sostre it is imposse to procere indictmeis Licines mobs in lyrics We tai goe ters friziana ia: IDAS the stand this morning, but the sa iti IKI TATIZItheir natural inclinatzea apparezirci bare er inne other war-conclusreis shovel iti Eric si mas as and vidual, the impossibility of Tamil Se ments in certain localitzes because of lrt lae iness S1 was a combination of the inefficiency of ini sarà xanment of the community in support of the bizim bors in not revealing names ari fasszazsan bat whatever may be the cause, in my opinion, the taal of the evidence is that we cannot depend upon local
para Representative Srxsers. I think in wars are that is absolutely true. In most comniurites it probar wan be true after a lynching takes place. The influence of the almunity is a thing that must be depended upon to prerert lynching, but atter it has taken place. I beliere you are corretanet it. I think you would have great difficulty, and you will have just as great way if Cncle Sam enters the field. I am not sure that you would ne have greater difficulty.
Senator Costirax. 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. Gur 1. Goti, 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.
Senator Van Nuys. That may be done.
ANTILYNCHING BILL Hon. Guy D. Goff, assistant to the Attorney General of the Cnited States, appeared before the comm ttee 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 l'nited States, which is nothing more than the so-called police power of the l'nited 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 sc-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