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take? It is not possible by any law to force sheriffs and peace officers to resist a mob, grand juries to indict, prosecuting officers to prosecute, witnesses to testify, or Governors to call out troops. Congress cannot force a State and its offers to do their duty.
It would be almost equally impracticable to enforce a law providing for the punishnient of State officials who refuse or neglect to do their duty.
The only remedy is for Congress to provide that the officers and courts of the l'nited States shall step into the gap left by the State and its officers and give that protection to which the citizen is entitled and punish all who take from him life, liberty, or property without due process of law. Congress may also, following the analogy of those laws which impose upon a city liability for losses caused by riots, a punishment almost as old as the common law, make the communities which tolerate lynching responsible in damages, and these are the remedies which Congress has deemed appropriate.
The argument under the fourteenth amendment may be stated briefly.
Congress by the express language of the amendment is given power to enforce it.
Whether at any given time the occasion exists for the exercise of that power is a question of fact, and Congress has the right to decide that question. Who but Congress can decide it? No court can try such an issue and decide whether or not Congress ought to legislate. The passage of a law is a decision by Congress that the occasion for legislation exists.
Congress, which has the power to pass appropriate legislation, has the power to decide what legislation is appropriate.
In Virginia v. Rives (100 U.S. 318) the court says:
* Congress, by virtue of the fifth section of the fourteenth amendment, may enforce the prohibitions whenever they are disregarded by either the legislative, the executive, or the judicial department of the State. The mode of enforcement is left to its discretion."
In the ('ruikshank case (92 U.S. 552, 553) Chief Justice White says:
* The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property without due process of law; but this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society."
Mr. Justice Bradley, in First Woods Circuit ('ourt Reports, page 313, in the Cruikshank case 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. It may be by the establishment of regulations for attaining the object of the right, the imposition of penalties for its violation, or the institution of judicial procedure for its vindication when assailed or when ignored by the State courts, or it may be by all of these together. One method of enforcement may be applicable to one fundamental right and not applicable to another."
In Logan v. United States (144 U.S. 263 at p. 293) Jr. Justice Gray, delivering the opinion of the court, said:
“ The whole scope and effect of this series of decisions is that, while certain fundamental rights, recognized and declared but not granted or created, in some of the amendments to the Constitution, are thereby guaranteed only against violation or abridgment by the United States, or by the States, as the case may be, and cannot therefore be affirmatively enforced by Congress against unlawful acts of individuals; yet that every right created by, arising under, or dependent upon the Constitution of the United States may be protected and enforced by Congress by such means and in such manner as Congress, in the exercise of the correlative duty of protection, or of the legislative powers conferred upon it by the Constitution, may in its discretion deem most eligible and best adapted to attain the object."
On page 294 :
"Any government which has power to indict, try, and punish for crime, and to arrest the accused and hold them in safekeeping until trial, must have the power and the duty to protect against unlawful interference its prisoners so beld, as well as its executive and judicial officers charged with keeping and trying them."
THE PEACE OF THE UNITED STATES
Another source of the power to legislate is found in the doctrine that there is a peace of the United States which Congress has the right to maintain.
The doctrine is well stated by Mr. Justice Bradley in Ea parte Siebold (100 U.S. 371, 394):
Somewhat akin to the argument which has been considered is the objection that the deputy marshals authorized by the act of Congress to be created and to attend the elections are authorized to keep the peace; and that this is a duty which belongs to the State authorities alone. It is argued that the preservation of peace and good order in society is not within the powers confided to the Government of the United States, but belongs exclusively to the States. Here, again, we are met with the theory that the Government of the United States does not rest upon the soil and territory of the country. We think that this theory is founded on an entire misconception of the nature and powers of that Government. We hold it to be an incor.trovertible principle that the Government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it. This necessarily involves the power to command obedience to its laws, and hence the power to keep the peace to that extent. This power to enforce its law's and to execute its functions in all places does not derogate from the power of the State to execute its laws at the same time and in the same places. The one does not exclude the other, except where both cannot be executed at the same time. In that case the words of the Constitution itself show which is to yield. * This Constitution and all laws which shall be made in pursuance thereof
shall be the supreme law of the land.'
“ The United States must execute them on the land as well as on the sea, on things as well as on persons. And, to do this, it must necessarily have power to command obedience, preserve order, and keep the peace; and no person or power in this land has the right to resist or question its authority, so long as it keeps within the bounds of its jurisdiction."
Again in Tennessee v. Daris (100 U.S. 257, p. 262), the court, speaking through Mr. Justice Stone, said:
The United States is a Government with authority extending over the whole territory of the Union, acting upon the States and the people of the States. While it is limited in the number of its powers, so far as its sovereignty extends it is supreme. No State government can exclude it from the exercise of any authority conferred upon it by the Constitution ; obstruct its authorized officers against its will; or withhold from it for a moment the cognizance of any subject which that instrument has committed to it."
The leading case is In re Neagle (135 U.S.) and the opinion of the court by Mr. Justice Miller with the authorities cited is pertinent.
There Neagle in California had killed a man. He claimed that he was acting as the duly appointed guard of Mr. Justice Field then on his way to hold court, that the man whom he killed was threatening Justice Field's life, and he killed him in the discharge of his duty as guardian to defend the judge. The offense was a common-law offense committed in (alifornia, and Neagle was indicted in that State whose courts were competent to try him. He was taken by habeas corpus issued by the Federal court from the custody of the Stite officers and discharged, and this action was upheld by the Supreme Court.
If there is a peace of the United States, it exists not only for the Federal officer in the discharge of his duty, but for the American citizen who is murdered or robbed in violation of the fundamental rights which are secured to every citizen.
Wells v. Nickles (104 L'.S. 444) is a case very much in point. The facts are thus stated by Mr. Justice Miller in the Neagle case (135 l'.s., p. 65–66):
· That was a case in which a class of men appointed by local land officers. under instructions from the Secretary of the Interior, having found a large quantity of this timber cut down from the forests of the l'nited States and lying where it was cut, seized it. The question of the title to this property coming in controversy between Wells and Nickles, it became essential to inquire into the authority of these timber agents of the Government thus to seize the timber cut by trespassers on its lands. The court said: The effort we have made to ascertain and fix the authority of these timber agents by any positive provision of law has been unsuccessful.' But the court, notwithstanding there was no special statute for it, held that the Department of the Interior, acting under the idea of protecting from depredation timber on the lands of the Government, had gradually come to assert the right to seize what is cut and taken away from them wherever it can be traced, and in aid of this the registers and receivers of the land office had, by instructions from the Secretary of the Interior, been constituted agents of the United States for these purposes, with power to appoint special agents under themselves. And the court upheld the authority of the Secretary of the Interior to make these rules and regulations for the protection of the public lands."
No one can doubt that Congress could exercise the authority, which in that case was conceded to a Cabinet officer. It could pass a law to protect the timber which belongs to the United States and to punish the thief who should steal it. It could do this notwithstanding theft was an offense under the laws of the State where the timber was cut, because the United States has the right to protect its property by its own officers and its own courts. It cannot be left to depend on State officers and State courts who may sympathize with their own fellow citizens against the Government. State courts and their juries could not have been relied on to enforce the fugitive slave law.
Has the United States a right to protect a tree, and no right to protect a man? Has it no interest in one fifth of its people, potential soldiers, actual taxpayers, men and women, the best asset that a nation can have? We should be slow to admit that a tree is more valuable to the United States than an American citizen.
Let us suppose that this question had arisen before the Civil War while these colored citizens were slaves and therefore property, that in building a fort or other public work the Government had contracted with a slave owner to furnish slave labor, that some labor organization anxious to discourage their competition had attacked and killed many of the slaves, as Chinese laborers were attacked years ago at Rock Springs, could not Congress have passed laws to protect the slaves and punish those who attacked them in the Federal courts, though all that was done was criminal under the State laws? Were Negroes as slaves entitled to protection which is denied to them as freemen, or would such a law have been sustained only because the attack interfered with work prosecuted by the United States?
Must we admit that property is more sacred in our country than human life; that the United States can protect its officers and not its citizens against murder and robbery; that there is a peace of the United States for the judge or the marshal and none for the private citizen? Under imperial Rome the cry. "I am a Roman citizen " was a shield against wrong wherever the eagles of Rome were flying. Shall the cry. “I am an American citizen", uttered by an American in Mexico, bring all the power of the country to his aid, but uttered in Georgia fall on deaf ears? The answer to this question is in the hands of the Senate.
THE FIFTH AMENDMENT But there is yet a third source of power.
Suppose that in order to give Congress a power to protect our citiens which no one could question we should decide to amend our Constitution and should adopt the broad form of the thirteenth amendment: “ Neither slavery nor involuntary servitude
shall exist within the l'nited States or any place subject to their jurisdiction."
Could we use better language to effect our purpose than this?
“ No person shall be deprived of life, liberty, or property without due process of law."
Those words would assure this fundamental right to every person under the protection of the Constitution.
But those words are already in the Constitution, introduced by the fifth amendment.
It is answered that the first 10 amendments were passed to protect the citizen against abuse by the Federal Government and must be construed merely as limitations and not as grants of power.
It is true that this has been held by the Supreme Court in a series of cases, but that court has frequently overruled its own decisions, and no rule not required by the very words of the instrument can prevail against the demand of 10,000,000 citizens for the protection of their dearest rights.
It is doubtless true that the fear of atruse by the General Government led to the adoption of the 10 amendments, but while the first in terms limits the power of Congress, the fifth contains no such language and is rather an assertion of fundamental rights belonging to every citizen of the new Nation. There was no reason why these should be protected against the Federal Government and be left at the mercy of the States. A fear led the people to legislate, but their legislation must be interpreted by its words. The courts have again and again refused to interpret an act by its purpose, as disclosed by words usel in debate when it was passed, and have insisted that its meaning is to be found in its language_" within the four corners of the instrument."
If we are going to interpret the language of an instrument by the purposes of those who framed it, let us remember for what the American Revolution was fought and our Government was founded. In England, from which we desired to be separated, it has been well said that King, lords, Commons, and all the powers of the State existed to get 12 men into the jury box; in other words, to make sure that no man was deprived of life, liberty, or property without due process of law. Our fathers, who resisted what they considered the “ tyranny” of England, who in their Declaration of Independence recited the inalienable rights which they fought to secure, and who framed the Constitution in order to establish a government under which those rights would be safe, certainly did not intend that their Constitution should be interpreted so as to take from their Government the power to protect its own citizens in the enjoyment of those rights.
The people who after the Civil War made their colored fellow men their fellow citizens, and passed the thirteenth, fourteenth, and fifteenth avendments to secure their rights as citizens against hostile action by their former masters, never intended that they should be left to depend upon those masters for protection, and therefore gave Congress power to enforce the amendments.
Take the Declaration, the Constitution, and the amendments together, one purpose runs through them all, and if the purpose governs, the language must be construed to carry it out. We ask that a rule of interpretation be applied which was announced by Mr. Justice Story in Prigg v. Common icealth of Pennsylvania (16 Peters, 417, at 421):
“ How, then, are we to interpret the language of the clause? The true answer is, in such a manner as, consistently with the words, shall fully and completely effectuate the whole objects of it. If by one mode of interpretation the right must become shadowy and unsubstantial and without any remedial power adequate to the end, and by another mode it will attain its just end and secure its manifest purpose, it would seem upon principles of reasoning absolutely irresistible that the latter ought to prevail. No court of justice can be authorized so to construe any clause of the Constitution as to defeat its obvious ends, when another construction, equally accordant with the words and sense thereof, will enforce and protect them."
The sound rule is that the intention must be found in the words of the instrument. The fifth amendment contains not a word which makes its language merely a limitation in the power of the Federal Government. It declares in the broadest terms that under the Constitution “No person shall be deprived of life, liberty, or property without due process of law." It is a stateinent of fundamental rights belonging to every person under our flag and an assurance to those who would become citizens. Its language is clear and should be given full effect.
If, on the other hand, the purpose of those who framed and adopted the amendment is to prevent, can anyone doubt that the Dyer bill carries out the purpose of the fourteenth amendment?
But it is said that ('ongress is not given power to enforce the fundamental rights of our citizens. It is well settled that an express grant of power is not needed.
Mr. Justice Bradley, in First Woods Circuit Court Reports, page 314. In dealing with the Cruikshank case, said:
"It is undoubtedly a sound proposition that whenever a right is guaranteed by the Constitution of the United States Congress has the power to provide for its enforcement, either by implication arising from the correlative duty of government to protect wherever a right to the citizen is conferred or under the general power (contained in art. I. sec. 8. par. 18) 'to make all laws necessary and proper for carrying into execution the foregoing powers and all other powers vested by this constitution in the Government of the United States or any department or officer thereof.'”
In Strauder v. West Virginia (100 U.S. 310, 311) the language is :
"A right or an immunity, whether created by the Constitution or only guar. anteed by it, even without any express delegation of power, may be protected by Congress."
So in United States v. Reese (92 U.S. 214) it was said by the Chief Justice:
"Rights and immunities created by or dependent upon the Constitution of the United States can be protected by Congress. The form and manner of the protection may be such as Congress in the legitimate exercise of its legislative discretion shall provide. These may be varied to meet the necessities of the particular right to be protected."
The citizen of the l'nited States is entitled to protection from the Government to which he owes allegiance. The two are inseparable. The essential rights of the citizen, assured by the Constitution, must be supported by the Government which the Constitution created to do the Nation's work and to enforce and insure the rights of its citizens.
THE CASES RELIED ON BY THE OPPONENTS OF THE BILL Let us now consider the language of the Supreme Court in the cases which are relied upon to defeat this enactment. They are gathered in the case of James v. Bouman (190 U.S., p. 136 et seq.). Ex parte Virginia has been discussed already.
In United States v. Cruikshank (92 U.S. 542, at p. 554) the court says:
“ The equality of the rights of citizens is a principle of republicanism. 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 originally assumed by the States, and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the amendment guarantees, but no more. The power of the National Government is limited to the enforcement of this guaranty."
This recognizes the right of Congress to act when the States “ deny the right.” In the Civil Rights cases (109 U.S. 3, at p. 13):
“Until some State law has been passed, or some State action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the fourteenth amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation can be called into activity for the prohibitions of the amendment are against State laws and acts done under State authority. Of course, legislation may, and should be, provided in advance to meet the exigency when it arises, but it should be adapted to the mischief and wrong which the amendment was intended to provide against; and that is, State laws, or State action of some kind adverse to the rights of the citizen secured by the amendment.
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."
Again this recognizes that Congress may act, when some State action through its officers or agents has been taken adverse to the rights to the citizen.
Decided by a divided court and dealing with “civil rights", so called, not fundamental right like the right to life and liberty and due process of law, the authority of this case is weakened. The statement that “the prohibitions of the amendment are against State laws and acts done under State authority is overruled by Home Insurance Co. v. Los Angeles (supra).
This is true also of the statement that the legislation which Congress may adopt is only such as may be proper “ for counteracting such laws as the State may adopt or enforce."
"The denial of the rights given by the fourteenth amendment need not be by legislation." (Mr. Justice Holmes in Saunders v. Shau, supra.) United States v. Harris (106 U.S. 629-639):
** 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 bas 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 con