Ex parte Virginia (100 U.S. 339) ; Civil Rights cases (109 U.S. 3); United States v. Harris (106 U.S. 629); James v. Bowman (190 U.S. 127); Hodges v. United States (203 U.S. 1); United States v. Wheeler (254 U.S. 281).

Colonel Goff has very thoroughly gone over this question in his statement before your committee, and I heartily concur in the views he there expressed. It will be observed that in the cases above cited the court holds that the State may act through its legislative, its judicial, or its executive authorities, and the act of any one of these is the act of the State. This is concisely set forth in the opinion of the court in Ex parte Virginia (100 U.S. 339, at 346):

"We have said the prohibitions of the fourteenth amendment are addressed to the States. They are, 'No State shall make or enforce a law which shall abridge the privileges or immunities of citizens of the United States, nor deny to any person within its jurisdiction the equal protection of the laws.' They have reference to actions of the political body denominated a State, by whatever instruments or in whatever modes that action may be taken. A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition, and as he acts in the name and for the State and is clothed with the State's power his act is that of the State. This must be so or the constitutional prohibition has no meaning. Then the State has clothed one of its agents with power to annul or to evade it."

Of course if the act of one of these agencies of the State is a denial of the equal protection of the laws, since the act of such agent is the act of the State itself, such act is within the prohibitions of the fourteenth amendment to the Constitution. The authorities above cited hold that a statute that prohibits the act of an individual, irrespective of any action by the State or its officers, is beyond the power of Congress to enact under this fourteenth amendment. To my mind there can be no doubt that negativity on the part of the State may be, as well as any act of a positive nature by such State, a denial of the equal protection of the laws and thus be within the prohibition of the fourteenth amendment so as to give Congress power to act with reference to it. That such was in the mind of the court when pronouncing the decisions above cited is clearly shown by the following excerpts from the opinion of the court, speaking through Mr. Justice Bradley in the Civil Rights cases, supra, at pages 13 and 14:

“In fine, the legislation which Congress is authorized to adopt in this behalf is not general legislation upon the rights of the citizen but corrective legislation; that is, such as may be necessary and proper for counteracting such laws as the States may adopt or enforce, and which, by the amendment, they are prohibited from making or enforcing, or such acts and proceedings as the States may commit or take, and which, by the amendment, they are prohibited from committing or taking. It is not necessary for us to state, if we could. what legislation would be proper for Congress to adopt. It is sufficient for us to examine whether the law in question is of that character.

"An inspection of the law shows that it makes no reference whatever to any supposed or apprehended violation of the fourteenth amendment on the part of the States. It is not predicated on any such view. It proceeds ex directo to declare that certain acts committed by individuals shall be deemed offenses and shall be prosecuted and punished by proceedings in the courts of the United States. It does not profess to be corrective of any constitutional wrong committed by the States; it does not make its operation to depend upon any such wrong committed. It applies equally to cases arising in States which have justest laws respecting the personal rights of citizens and whose authorities are ever ready to enforce such laws, as to those which arise in States that may have violated the prohibition of the amendment. In other words, it steps into the domain of local jurisprudence and lays down rules for the conduct of individuals in society toward each other and imposes sanctions for the enforcement of those rules, without referring in any manner to any supposed action of the State or its authorities.”

And again, at page 23:

"Many wrongs may be obnoxious to the prohibitions of the fourteenth amendment which are not, in any just sense, incidents or elements of slavery.

Such, for example, would be the taking of private property without due proces: of law; or allowing persons who have committed certain crimes (horse stealing, for example) to be seized and hung by the posse comitatus without regular trial; or denying to any person or class of persons the right to pursue any peaceful avocations allowed to others."

My examination of the proposed legislation causes me to believe that all of its provisions are predicated upon some action—either negative or positiveupon the part of the States and that therefore the same is wholly within the competency of Congress to enact.

Section 10 imposes a penalty upon every county in which an unlawful killing occurs, and section 11 imposes a like penalty on every county through which the victim may be carried before being put to death. While the question whether the United States may penalize an instrumentality of a political subdivision of a State may cause some doubt it is at least an open one so far as the decisions of the Supreme Court are concerned. There has been conferred on Congress the power by appropriate legislation to enforce the prohibitions of the fourteenth amendment, and the imposition of penalties is a well-established means of enforcing the laws, and is so recognized by numerous decisions of all courts and is no doubt an appropriate method of so enforcing the law. This being true and the States having consented by their adoption of the provisions of the Constitution and its amendments to such enforcement of the law by the Federal Government, it would seem there could be but little question of the power of Congress to provide for such penalties.

Section 12 and section 13 provide for the punishment of State and municipal officers who fail in their duty to prevent lynchings or who suffer persons accused of crime to be taken from their custody for the purpose of lynching. These sections seem to me to strike at the heart of the evil, namely, the failure of State officers to perform their duty in such cases. The fourteenth amendment recognizes as preexisting the right to due process of law and to the equal protection of the law and guarantees against State infringement of those rights. A State officer charged with the protection of those rights who fails or refuses to do all in his power to protect an accused person against mob action de: ies to such person due process of law and the equal protection of the laws in every sense of the term. The right of Congress to do this is fully sustained by the decision of the court in Er parte Virginia, supra. (See pp. 346, 347.)

Section 15, providing for the punishment of unlawful acts committed against citizens or a subject of a foreign country meets a long-standing need which has been expressed by a number of Presidents. In Missouri v. Holland (252 U.S. 416) the court has upheld the power of Congress to enact laws necessary and appropriate to the effectuating of treaties.

I am, in a separate letter, to which is attached a copy of the proposed bill, calling attention to some slight modifications that I am taking the liberty to suggest, most of them being directed to matters of clarity in such proposed legislation.

Yours very truly,

H. M. DAUGHERTY, Attorney General.

Mr. Moorfield Storey, of Boston, submitted a brief from which is quoted the following:

THE REMEDIES

It is clearly idle to hope that the Constitution can be amended so as to increase the powers of Congress in this matter. The States where racial prejudice prevails are too numerous.

The alternative therefore is clear. Either Congress has the power to pass effective legislation against lynching or the United States cannot protect its own citizens from murder and their property from destruction at the hands of their fellow citizens who are subject to its jurisdiction. It can impose burdens, but it cannot defend rights. It can tax but it cannot save the taxpayer. That lynching is a Nation-wide evil, that no action by the States can be expected, and that the evil should be abated for the sake of the Nation quite as much as for the sake of those who suffer by it must be conceded.

To admit that the Nation is powerless to abate such an evil and to protect its own citizens is to admit that our Government is weaker than any other civilized government. This is an admission which we should be ashamed to make.

We should therefore expect to find that the national legislature has power to end a national abuse in the interest of the Nation. Salus populi suprema est lex is the rule which should control our actions.

There are three sources from which the power to pass this law may be derived.

THE FOURTEENTH AMENDMENT

The one which is generally considered first in any discussion of the question is the fourteenth amendment of the Constitution, of which the first section reads as follows:

"All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privilege or immunities of citizens of the United States; nor shall 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 laws." The last section of the amendment expressly gives Congress the "power to enforce by appropriate legislation the provisions of this article." This grant of power cannot be ignored.

It is not necessary to point out that this amendment was adopted in order to assure to the freedmen the rights of American citizens. The language of the amendment makes them American citizens first, and apparently as a consequence citizens of the State in which they reside. It forbids the abridgement of the rights belonging to "American citizens", and it is evident that importance was attached to their position as citizens of the United States.

The situation which this amendment was intended to meet was a very practical one, and the amendment should receive a construction equally practical, a construction calculated to accomplish its purpose, not to defeat it. The enfranchised Negroes were dwelling in communities where they had been held as slaves and in those communities had been regarded and treated as chattels, not as men. Their elevation to the rank of citizens was regarded with absolute hostility, and it was clear that their rights would not be respected unless they were maintained by the United States. The amendment was passed to secure these rights and to give Congress the power to maintain them. It never was the intention of the people who adopted the amendment that the States so recently in rebellion should be able to nullify the amendment by simple nonaction and should be able to plead that the persons who trampled on the new citizens were merely private persons for whose acts the State was not responsible.

The rule laid down by Chief Justice Marshall should be applied. When speaking of the Constitution, he said:

This instrument contains an enumeration of powers expressly granted by the people to their Government. It has been said that these powers ought to be construed strictly, but why ought they to be so construed? Is there one instance in the Constitution which gives countenance to this rule? If from the imperfection of human language there should be serious doubts respecting the extent of any given power, it is a well-settled rule that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction. * * We know of no rule for construing the extent of such powers other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they are conferred" (Gibbons v. Ogden, 9 Wheat. 187. 188).

Speaking of the power to regulate commerce, he says, at page 196:

This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed by the Constitution. * * * The wisdom and the discretion of Congress, their identity with the people, and the influence which their goustituents possess at elections are in this as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied to secure them from its abuse. They are the restraints on which the people must often rely solely in all representative governments." Again, at page 204:

"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 exercise of its powers."

We must inquire what action by the State was contemplated and forbidden. How could the State deprive a person of life? No one could have supposed that these words were intended to forbid a law decreeing the death of an individual or a group of individuals nor was a law directly taking liberty or property at all probable.

The denial of rights given by the fourteenth amendment need not be by legislation (Saunders v. Shaw, 244 U.S. 317, p. 320).

The judicial power ex vi termini could not act without process of law.

The action forbidden by these words must be the acts of individuals who, whether officers of the State or private persons, would under the laws of any State be criminals if they took either life, liberty, or property without due process of law. Such acts are murder, assault, and robbery or larceny. No words better describing lynching and mob violence can be framed than taking life, liberty, or property without due process of law." This difficulty was met very early.

In Er parte Virginia (100 U.S. 339, 346) the Supreme Court in a unanimous opinion by Mr. Justice Strong, speaking of the prohibitions of the fourteenth amendment, says:

They have reference to actions of the political body denominated a State, by whatever instruments or in whatever modes that action may be taken. A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision therefore must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State and is clothed with the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning. Then the State has clothed one of its agents with power to annual or to evade it.

"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 sul 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."

If the officers and people of a State sit quietly by, year after year, let lynchers murder, rob, and destroy and never take any steps to prevent them; if their governors, as have the Governors of Georgia, Mississippi, and other States, declare that they have no power to prevent them; if they never try to exercise such power, if the lynchers are known and never punished, but on the other hand praised, is not the State, the body of citizens who elect the legislature, the judges, and all the officers of the State, are not they privy to and responsible for these crimes? If not, how can the State do what the amendment forbids? Well did President Wilson, in his appeal to the people against lynching, say. "It cannot live where the community does not countenance it."

Suppose a State were to pass a law providing that its officers should surrender negroes charged with crimes to mobs bent on lynching them, and that no person taking part in lynching a colored man should be prosecuted for any offense, would not such legislation justify action by Congress? What practical difference is there between such a law passed by the legislature and the practice which prevails by common consent?

How little sympathy the community has with any attempt to protect the rights of these citizens may be gathered from the minority report of the House Judiciary Committee on the Dyer bill which is signed by five members and is very brief. It contains no recognition of the evil, no expression of regret at the outrages which have continued so long, no suggestion that there is any hope of changing these conditions by the action of the States themselves. It simply denies the power of Congress to pass the law, and with a certain naïveté says that this proposed intervention of the Federal Government "would tend to destroy that sense of local responsibility for the protection of person and property and the administration of justice from which sense of local responsibility alone protection and governmental efficiency can be secured among free peoples."

It is almost humorous to think that these gentlemen dread the destruction of a "sense of local responsibility" which has in many years never punished a lyncher.

Coming next to the clause which forbids the State to deny to any person the equal protection of the laws. Cannot that denial be made as well by inaction as by action; by omission to act as well as by deed; by gross negligence as well as by misfeasance?

Does not this amendment impose upon the State a duty to protect? Must it not pass the laws which give protection and must it not see that those laws are enforced? Every civilized community employs policemen to protect its citizens against criminals. If in any State or city the protection of the police is not given to one class of citizens, if those who attack, kill, or rob them are never arrested or punished, if this goes on for years, and the community acquiesces, though having the power by changing its officers to afford that protection, is not the class so treated deprived of the protection to which it is entitled-" the equal protection of the laws"?

The Supreme Court has said that an actual discrimination against a Negro on account of his race by officers intrusted with the duty of carrying out the law "is as potential in creating a denial of equality of right as a discrimination" made by law." (Tarrana v. Florida 188 U.S. 519, at p. 520.)

The sheriff who does not defend the jail against a mob, the officers who do not resist the persons who take a prisoner from their custody, knowing in both cases that he will be lynched, deny him the protection of the law, and in the words of Justice Strong, their "act is that of the State."

This proposition is clearly sustained by the unanimous opinion of the Court delivered by Mr. Chief Justice White in Home Telegraph & Telephone Co. v. Los Angeles (227 U.S. p. 278).

The headnote contains this statement:

64

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 has authorized the wrong is irrelevant."

The Court distinctly overrules the contention that "the prohibitions and guaranties of the amendment are addressed to and control the States only in their complete governmental capacity ", saying, on the contrary that "the provisions of the amendment, as conclusively fixed by previous decisions, are generic in their terms, are addressed, of course, to the States, but also to every person, whether natural or juridical, who is the repository of State power. By this construction the reach of the amendment is shown to be coextensive with any exercise by a State of power, in whatever form exerted."

It further deals with the proposition that "the terms of the fourteenth amendment reach only acts done by State officers which are within the scope of the power conferred by the State", and overrules it, saying, on the contrary: "Here again the settled construction of the amendment is that it presupposes the possibility of an abuse by a State officer or representative of the powers possessed and deals with such a contingency. It provides, therefore, for a case where one who is in possession of State power uses that power to the doing of the wrongs which the amendment forbids even although the consummation of the wrong may not be within the powers possessed if the commission of the wrong itself is rendered possible or is efficiently aided by the State authority lodged in the wrongdoer."

Adding:

"The amendment contemplates the possibility of State officers abusing the powers lawfully conferred upon them by doing wrongs prohibited by the amendment."

Apply this language to the question whether "the equal protection of the laws" is denied to the Negroes. If the jailer or officer in charge of the victim surrenders him to the lynching mob, and all the officers of the State from the Governor down take no steps to insure him against the mob, or to prosecute the lynchers, do not these officers "use their power" to deny the protection of the law? What protects us all but the laws against crime and their enforcement by the proper officers of the law? Refusal to enforce is denial of protection. The Chief Justice cites from Virginia v. Rives (100 U.S. 318):

"It is doubtless true that a State may act through different agencies, either by its legislative, its executive, or its judicial authorities; and the prohibitions of the amendment extend to all action of the State denying equal protection of the laws, whether it be action by one of these agencies or by another."

Assuming that Congress is satisfied that the occasion exists for the exercise of its power to enforce the provisions of the fourteenth amendment by “appropriate legislation ", what form would that legislation naturally and reasonably