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" When Congress determines upon the question what its legislative judgment should be that Congress takes into consideration not the facts which exist in some one State, to the exclusion of facts existing in another State, but that Congress takes into consideration what is the greatest good for the greatest number.
** Congress must be charged sometimes with altruism when it legislates upon any great question ; Congress must not be charged with having taken into consideration conditions in one State to the exclusion of conditions in another, because if it did it would be guilty of pealizing a State where, possibly, the legislation would not affect the individuals of that State for the benefit of the greater number of the people of the United States.
* The words 'necessary and proper' have been held as endowing the Federal Government with every authority the exercise of which may in any way assist the Federal Government in effecting any of the purposes the attainment of which is within its constitutional sphere. In United States v. Fisher (2 Cr. 538), decided in 1804, Chief Justice Marshall declared :
* It would be incorrect and would produce endless difficulties if the opinjon should be maintained that no law was authorized which was not in-lispensably necessary to give effect to a specified power. Where various systems might be adopted for that purpose, it might be said with respect to each that it was not necessary because the end might be obtained by other means. Congress might possess the choice of means which are in fact conducive to the exercise of a power granted by the Constitution.'
“ Take the condition that exists in this country today. There is not a State of course, this is a mere truism-that has not a law against murder, Now, in the act which bears the name of your distinguished chairman there are provisions which confer jurisdiction upon the Federal Government to prosecute assaults upon officers engaged in the enforcement of that act. There is a question in the minds of many people whether or not that act should not have conferred upon the Federal Government the right to prosecute cases of murder. It does concede the right to prosecute assaults. Now, I have in mind a case where men living in a certain State shot down, as they claimed in selfdefense, the officers of the law who came to search their premises for intoxicating liquor. These men have been tried twice for murder in the State court and the juries have disagreed. The law has not been popular in that State. Now, suppose the condition which exists in the State to which I refer were found to exist in other States of the Union. It is only an easy step to the psychology of our people. We know that the way the people of one State of this Union view a given state of facts is likely to be the view entertained in other sections of the country, unless you should give the facts a political eoloring, which this act does not because it would be based upon the Constitution and apply to all--red, white, and black-citizen, alien, resident, and inhabitant. Now, in view of the general knowledge of the so-called “ unpopularity" everywhere of this law, Congress could pass a law conferring upon the Federal courts the right to punish murder wherever officers enforcing that law were assaulted and killed.
** If ('ongress did that, who could question the judgment of Congress? I do not see who could run 'along the highway' and say Congress was not justified in doing this because in the New England States or in the Southern States they do not shoot down men so engaged. I do not think we should or that we could make it in any sense a sectional question, because we are all the same people; we all entertain the same views of life in the final, ultimate analysis. Our late World War demonstrated that. We forgot our politics; we were American citizens for the once, and we forgot that we had ever been Democrats and Republicans. We met the same situation in the same way. There may be differences depending upon temperament or environment, because after all we are initially the products of the conditions that started us, brought us up, and pushed us forward in this great fight in life, but when all of that is ironed out we are the same. So I say, that when you find conditions existing in one State you can conclude legislatively as well as actually that if the same 'cause irritant' makes its appearance in the other State you will find the same conditions in its train.
** The fact that such acts carried a penalty might in their deterrent effect prevent just such crimes. If a mob, in defiance of law, destroys property or commits arson, is the taxpayer without remedy, because the authorities were ignorant?
* In Crandall v. Nevada (6 Wall. 35) the court discusses and classifies some of the distinctly Federal rights. It is said to be the right of the citizens, protected by implied guaranties of the Constitution, 'to come to the seat of Gov. ernment to assert any claim he may have upon the Government, to transact any business he may have with it, to seek its protection, to share its offices, to engage in administering its functions. He has the right of free access to its seaports, through which all operations of foreign countries are conducted, to the subtreasuries, land offices, and courts of justice in the several States.'
“And in the Slaughterhouse cases (16 Wall. 36, 79) it is said :
* *Another privilege of a citizen of the United States is to demand the care and protection of the Federal Government over his life, liberty, and property when on the high seas or within the jurisdiction of a foreign government. Of this there can be no doubt, nor that the right depends upon his character as a citizen of the United States. The right to peacefully assemble and petition for redress of grievances, the privilege of the writ of habeas corpus, are rights of the citizens guaranteed by the Federal Constitution. The right to use the navigable waters of the United States, however they may penetrate the territory of the several States, all rights secured to our citizens by treaties with foreign nations, are dependent upon citizenship of the United States, and not citizenship of a State. One of these privileges is conferred by the very article under consideration. It is said that a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State.'
" In Maxwell v. Dow (176 U.S. 581) the court in its majority opinion announced that the mere fact that a certain privilege was granted against Federal infringement did not operate to make such privileges distinctively Federal in character. In that case Justice Harlan delivered one of his famous dissenting opinions based upon the proposition that the privileges and immunities enumerated in the first eight amendments of the Constitution belong to every citizen of the United States. However, in the course of the majority opinion, delivered by Mr. Justice Peckham, the language of the Court In re Kemmler (136 L'.S. 436, 448) was repeated and approved. It will be observed that the decision turns upon the question whether the trial of a person accused as a criminal by a jury of only 8 persons instead of 12 was an encroachment by the State upon those fundamental rights inhering in citizenship and which the State governments were created to secure. The Court said:
" • The fourteenth amendment did not radically change the whole theory of the relations of the State and Federal Governments to each other, and of both Governments to the people. The same person may be at the same time a citizen of the United States and a citizen of a State. Pratection to life, liberty, and property rests primarily with the States, and the amendment furnishes an additional guaranty against any encroachment by the States upon those fundamental rights which belong to citizenship and which the State governments were created to secure. The privileges and immunities of citizens of the United States, as distinguished from the privileges and immunities of citizens of the States, are indeed protected by it; but those are privileges and immunities arising out of the nature and essential character of the National Government and granted or secured by the ('onstitution of the United States.'
* Obviously, if the State by direct legislation abridged any of these rights. the act would encroach on the privileges protected. The State would then positively violate the Federal provisions. But does the State not violate and render meaningless the provisions of the amendment by neglecting to legislate. refusing to enforce its laws, or by allowing its laws and its officials to drift into a condition of utter helplessness and indifference? Are citizens' and *persons' to be thus (leprived of life, liberty, and property when the people of the States have clothed the Federal Government with power to see that they. the State, do not deny such rights, and have expressly empowered the ('ongress and directed it to enforce' such commands by appropriate legislation?"
We quote some additional authorities as to the constitutionality of the antilynching bill submitted by Hon. Merrill Moores:
“The case of James v. Bowman (190 U.S. 127) is not in point as to the proposed antilynching bill, for the reason, in addition to those stated by Colonel Goff, that it concerns a statute based solely on the fifteenth amendment, while the proposed bill is based on the fourteenth amendment, which is totally different in its provisions.
The fourteenth amendment guarantees that no State shall deny to any person within its jurisdiction the equal protection of the laws', a guarants
equivalent to one that each State shall secure to every person within its jurisdiction the equal protection of the laws.
* The fifteenth amendment is as follows: .
** The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.' To enforce this provision Congress enacted Revised Statutes 5507, to punish every person who prevents, hinders, controls, or intimidates another from exercising or in exercising the right of suffrage, to whom that right is guaranteed by the fifteenth amendment to the Constitution of the United States, by bribery or threats, etc.
“ Certain men were indicted under this statute for bribing colored voters of Kentucky not to vote at a congressional election. The court held that under the amendment providing that the right of citizens to vote shall not be denied or abridged on account of race, color, etc., the Congress could not pass a statute punishing election bribery of Negroes. It is hardly worth while discussing the propriety of this decision, in view of the fact that it has no bearing at all on the questions at issue.
“ The fourteenth amendment forbids the withholding of the equal protection of the law by any State to any person within its jurisdiction. This bill simply provides that the State governments shall treat all persons within their jurisdiction alike in discharging the highest function of government, the protection of life and liberty of the governed.
** The first principle stated in the Declaration of Independence is as follows:
** We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness. That to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed.'
* In framing the Constitution, our fathers recognizing that governments are instituted among men to secure the rights of life, liberty, and the pursuit of happiness, stated in the preamble its purpose to be to form a perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.
“ With these principles as their purpose, all the State governments were established and the principles are restated in every State constitution.
** The fourteenth amendment is simply declaratory of the principle that a State in which life, liberty, and property are not protected for every person within its boundary does not perform the first and greatest function of government-the protection of the personal rights of the governed. It is for this purpose that all State officers are chosen and paid. It is for this that taxes are collected and the States policed.
* It goes without saying that in a civilized government like ours if any person is assaulted, beaten, maimed, or lynched by a mob, some officer whose sworn duty it is to enforce the laws has been derelict in his duty and has violated his official oath. The often-quoted words of Mr. Justice Matthews in the Yick Wo case are in point as to the moral liability of the State for the dereliction of its officer:
“* Whatever may have been the intent of the ordinances as adopted, they are applied by the public authorities charged with their administration and thus representing the State itself, with a mind so unequal and oppressive as to amount to a practical denial by the State of that equal protection of the laws which is secured to the petitioners, as to all other persons, by the broad and benign provisions of the fourteenth amendment to the Constitution of the Cnited States. Though the law itself be fair on its face and impartial in appearance, yet if it is applied and administered by public authority with an evil eye and an unequal hand so as to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.' (Yick Wov. Hopkins, 118 U.S. 356, 373).
- This language has been quoted with approval by the same court in construing a cigarette law of Tennessee unqually enforced. (Austin v. Tennessee, 179 U.S. 343, 350.)
" It has also been followed in its reasoning in the Los Angeles Gas Works case (Dobbins v. Los Angeles, 195 U.S. 223, 240).
“ It was again quoted and followed in the Wisconsin Salvation Army case ,Re Garrabad, 84 Wis. 592–593 ; 36 Amer. St. 952, 593 ;; 19 L.R.A. 858, 864).
" 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.)
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 contract, 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 committeed 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.
“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 Rerford 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 LRA. 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; 13 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; l’nited 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 :
". 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 beither of the C'nited States oor of any other State to see a State, bat sizpit restrictes the right of this other states to bring suits "As to the mastitationality of statutes imposing a penalty upon counties or municipalities for loaching or mob Tiolence, the following adlitivnal authorities are submitted: Dale County F. Gunter (46 Ala. 11); De Kolk r. Smith (47 Ala. 4071 : Canty E. Clarendon County 1101 S.C. 141): Atchison r. Turime 19 Kars. 350 ; Cherryoole F. Harman iso Kans. 170: 3 LRA. (3.8.1 645); P. P. C. & 81. L. BY CO.T. Chicago (242 Il 178: 44 LRA XS 338; u Cre. 300. 501).
* To summarize the argument it would appear that the Cnited 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, Dor 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 or under the State charged with their equal enforce ment, 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 Cnited 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 constituti sai 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 Cnited States may by means of physical force exercised, through its official agents, exceute on every foot of American soil the powers and functions that belong to it" (Ez parte Siebold, 100 C.S. 371, 395).
** Let the end be legitimate. let it be within the sease of the Constitution, and all means which are appropriate, which are plainly adapted to that eart. which are not prohibited bat consistent with the letter and spirit of the Constitution, are constitutional ** Voullough 5. Maryland. 4 Wheat, 316. 421).
DEPARTMENT OF JUSTICE
Washington, D.C. August 9, 1921.
House of Representatires. MY DEAR M2 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 proteetion 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 nuy 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 basty examination of the bill.
As pointed out by Colonel Goff in his statement before your committee, the first seren 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 Cnited States, are in effeet 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 gare 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 citedi : United States v. Cruikshank (92 C.S. 542) ; Virginia v. Rires (100 V.S. 313);