strued 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."

But where these conditions do not exist Congress must act.

Ex parte Virginia recognizes the officers or agents by whom the powers of the State are exercised as the State and provides that they shall not deny to any person within its jurisdiction the equal protection of the laws.

United States v. Cruikshank holds that the obligation which rests on the United States is to see that the States do not deny the right of the citizens to the enjoyment of fundamental rights, that the equality of the rights of citizens is a principle of republicanism, that every part of the Government is bound to protect its citizens in these rights, and that the power of the National Government extends to the enforcement of this guaranty.

In the civil rights cases the court recognizes the fact that legislation may and should be provided in advance to meet the exigency when it arises, but it should be adapted to the mischief or wrong which it was intended to provide against, that is, State laws or State action of some kind adverse to the rights of the citizens secured by the amendment.

United States v. Harris holds that the Congress cannot act when no one of the departments of the State has denied to any person within its jurisdiction the equal protection of the laws, but where such denial has taken place it can act.

All these cases recognize that conditions may arise which will render action by Congress necessary to enforce the guaranty of the fourteenth amendment. To hold otherwise is to strike out entirely the grant of power in the amendment itself.

We have in hundreds of cases the executive officers of the State, the persons who are in possession of suspected persons and charged with the duty of securing for them due process of law, surrendering to the mob these persons, making no effort to hold the jail against attack, or to defend the prisoners from being taken out of their custody, although it must be perfectly apparent to them that the purposes of the mob is to lynch the prisoner without due process of law. These officers are the agents of the State by which its power is exercised, and by their acts toward these accused persons and the mob they deny their prisoners the equal protection of the law, and when their action is ratified by their higher officers and by all the people of the State it is clear that the State has denied to these citizens the equal protection of the laws.

Un'ess Congress has power to deal with this situation, if it cannot remedy the abuses which have gone unchecked for a generation and more, the manifest intent of the fourteenth amendment is defeated entirely, and by refusing to pass this law, either as it stands or amended if amendment is needed, Congress says to the colored people of this country, "We are powerless to aid you and can hold out no hope that we can ever help you. Alone of all the citizens of the United States you may be deprived of life, liberty, or property whenever a mob of white men chooses to murder or rob you." Should the Constitution of the United States be so interpreted as to justify this conclusion?

The Supreme Court has never sustained such an interpretation and in my judgment never will.

It would seem clear in any event that Congress should not refuse to do its duty because of the fear that the Supreme Court might not agree with it as to the necessity and legality of the act which the House of Representatives has passed. The distinction between the cases which have hitherto been presented to the court and this case is very clear, and if Congress errs the Supreme Court will have the power to correct the error, but if Congress refuses to act it is responsible for the continuance of the infamous practice which the bill is framed to stop.

MOORFIELD STOREY,

BRIEF OF HERBERT K. STOCKTON ON THE DYER ANTILYNCHING BILL
NEW YORK, June 5, 1922.

Hon. WILLIAM E. BORAH,

United States Senate, Washington, D.C.

MY DEAR SENATOR BORAH: I have studied with the keenest interest the Dyer bill (H.R. 13), the decision to which you directed me in your letter of May 12 and other decisions of the Supreme Court, as well as Mr. Moorfield Storey's brief in support of the bill.

I have une to the mopelusion that the Dyer bill is pričazy, erst TITREA – and I will state briety. why i thing se, as my raisons deur a somewhat diferent emplasts from Mr. Storey's: and I will also state why I think the hcl stondi de referted cat with slightly changed wording and passed, even though you my feel that its constitutionality is not a matter of crta 217.

In view of the many judicial interpretations the Censtirenea and is amendments have received, it may be well to begin by dearing away certain times of decisions which might at first sight be tikcent fatal to the presed av d which I think eas he stevi, to be irrelevant. It must first de særved that— I The Dyer bill rests, or should rest. squarely and sciely on a single cause of section 1 of the fourteenth amendment of rhe Coastman ra redst “Nor stall any State * deny to any person within its jurisbeting the

equal protection of the laws”

I bone to show later that the proposed law is within the sorce of this pro vision and its supplementary section 5, which empowers the Congress to enforce the provision quoted by appropriate legislation. Meanwhile, it helps clear the issue to xe thit

(a) The Dyer bill does not invoke the rights of the citizen of the Unit States as distinct from the citizen of the individual State.

Therefore, the line of decisions culminating in the Bisbee deşertater erst United States v. Wheeler (274 U.S. 281) has no application.

it seeras to me, to base an artilynching law on the oust tational rig918 vč citizen of the United States in view of that decision. Thench bet atwaring in the statement of facts. I am told the county authorities were part of the armei mob which seized he United States citizen in question, became they were members of the LW.W., locked them in box cars, and on them out of Artavesa into New Mexico. Mr. Chief Justice White, after stating that the court below had quashed the indictment on the ground that no power hid been doingsted by the Constitution to the United States to forbid and punish the wrongful arts complained of as the right to do so was exclusively within the authority reserve. by the instrument to the several States, cited Carfield v. Corseti 14 Was CC. 371): Slaughterhouse ense63 (16 Wall. 36); Paul v. Virginia (S WAL. 168); Ward v. Marylard (12 Wall. 418), and on the strength of these cases affirmed the judgment of the court below, observing, at pace 2948:

*** No basis is afforded for contending that a wrongful prevention by an individual of the enjoyment by a citizen of one State in another of rigüts possessed in that State by its own citizens was a violation of a right afforded by the Constitution. This is the necessary result of article 4, section 2, wha reserves to the several States authority over the subject, limited by the restric tion against State discriminatory action. hence excluding Federal authority except where invoked to enforce the limitation, which is not here the ease. * A conclusion expressly sustained by the ruling in United States v. Harris (106 U.S. 629, 645) to the effect that the second section of article 4. like the fourteenth amendment, is directed alone against State_action.” See also United States v. Harris (106 U.S. 629); James v. Bowman (190 U.S. 127).

It is to be noted from this quotation and from these cases (1) that in United States v. Wheeler the Federal authority to enforce the limitation on the States (e.g. against denying equal protection) was not invoked as it is invoked by the Dyer bill, and (2) that the Dyer bill, to be constitutional, must be shown to be "directed alone against State action", as I hope to show that it is directed. By the same course of reasoning we must also put aside such cases as Logan v. United States (144 U.S. 263), where lynchers of a United States marshal's prisoners were held to be subject to Federal indictment. That case involved the rights of a citizen of the United States, and this fact gave the Federal Government power to act directly upon individuals as distinguished from the State. (b) The Dyer bill does not invoke the power of the United States to enforce the thirteenth amendment, which prohibits slavery and involuntary servitude. Accordingly we can eliminate such cases as Hodges v. United States (203 U.S. 1), where it was held that the Federal Government could not by legis lation act against persons intimidating Negroes from working for wages. This decision was placed on the ground that inability to contract was not an essential element of slavery. Also, we can disregard the Slaughterhouse cases and the Civil Rights cases (109 U.S. 3), insofar as they deal with the thirteenth amendment. On the authority of Hodges v. United States, the Supreme Court, in United States v. Powell, defeated an attempt of Congress to deal with individual lynchers. It is to be noted, however, that the indictment of the lynchers

in he Federal court was under sections 5508, 5509, Revised Statutes, prohibiting conspiracy to injure a citizen in his enjoyment of rights secured to him by the Constitution. The court in the Hodges case said, by Mr. Justice Brewer (p. 14):

"That prior to the three post-bellum amendments to the Constitution the National Government had no jurisdiction over a wrong like that charged in this indictment is conceded; that the fourteenth and fifteenth amendments do not justify the legislation is also beyond dispute, for they, as repeatedly held, are restrictions upon State action, and no action on the part of the State is complained of."

We are thus brought squarely to the question, "Do the provisions of the Dyer bill aim to reach the lynching evil by acting on individuals or on States?" (II) The proposed law constitutes appropriate Federal action under the fourteenth amendment to prevent the individual State from denying to persons within its jurisdiction the equal protection of its laws.

We find the solid ground of fact under our feet at once when we regard the proposed law from this angle, for the States in fact do not give equal protection.

You know and I know, everybody, even the individual members of the Supreme Court know, that the victims of lynching mobs do not get the equal protection of the State's laws, that State and county officials do not try to prevent this crime as they try to prevent other crimes, that they do not try to punish this crime as they try to punish other crimes. This is susceptible of overwhelmingly convincing demonstration. And it is of the greatest importance, in my estimation, that a strong record, showing in graphic detail the unequal protection afforded the victims of lynching mobs, should be made before the committee which has the bill under consideration, or in whatever place and manner is appropriate, so that this record can be brought before the Supreme Court when it passes on the constitutionality of the law.

It is worth noting in passing that it is in accord with the fundamental purpose of this amendment for the Federal Government to take action to insure the Negroes particularly equal protection. Their plight was the cause of the amendment being adopted; their plight now is the occasion of this legislation. But is such inequality as the Negroes suffer in connection with lynchings the denial of equal protection by the States which the Constitution prohibits? To anticipate such an objection we should next observe that inequality in administration is a denial of equal protection of the laws.

It hardly seems possible to make any definition which more exactly fits the existing conditions with respect to lynchings than the constitutional phrase "deny the equal protection of the laws." It is clear that this must not be taken to mean only the passage of discriminating statutes or ordinances. The language of the provision we rely on is sharply distinct from the language of the preceding provision against discriminating legislation, which is that "no State shall make or enforce any law which shall abridge the privileges or immunities," etc.; not to deny that equal protection of laws imports not only an obligation to make no laws which discriminate but equally an obligation to enforce all State laws in existence, so that all persons within the jurisdiction of the State enjoy equal protection from them. But the Supreme Court has said this very exactly:

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

So, in Tarrance v. Florida (188 U.S. 519), Mr. Justice Brewer said, page 520 (the italics are mine):

"The contention of plaintiffs in error is that they were denied the equal protection of the laws by reason of an actual discrimination against their race. The law of the State is not challenged but its administration is complained of. As said by their counsel:

"We do not contend that the colored men are discriminated against by any law of the State in the selection of names for jury duty, nor do we contend that a Negro being tried for a criminal offense is entitled to a jury composed wholly or in part of members of his race, but we do claim that when a Negro is tried for a criminal offense he is entitled to a jury selected without any discrimination against his race on account of race, color, or previous condition of servitude; and when this is not the case he is denied the equal protection of the laws as guaranteed by the fourteenth amendment to the Constitution of the United States.'

**Such an actual discrimination is as potential in creating a denial of equality of rights as a discrimination made by law. But such an actual discrimination is not presumed. It must be proved or admitted."

Again, in Yick Wo v. Hopkins (118 U.S. 356), which seems to me a decision helpful to the Dyer bill, plaintiff in error (petitioner for writ of habeas corpus below) maintained that the ordinance under which he was imprisoned was unconstitutional. The ordinance made it unlawful to maintain laundries under certain circumstances" without having first obtained the consent of the board of supervisors." The opinion of the court below (quoted in the statement of facts) contains the following significant declaration (at pp. 362 and 363):

"If the facts appearing on the face of the ordinance, on the petition and return, and admitted in the case, and shown by the notorious public and municipal history of the times, indicate a purpose to drive out the Chinese laundrymer and not merely to regulate the business for the public safety does it not disclose a case of violation of the provisions of the fourteenth amendment to the national Constitution * **? That it does mean prohibition, as to the Chinese, it seems to us must be apparent to every citizen of San Francisco who has been here long enough to be familiar with the cause of an active and agressive branch of public opinion and of public notorious events. Can a court be blind to what must necessarily be known to every intelligent person in the State?"

Mr. Justice Matthews, in delivering the opinion of the court, said (pp. 373 and 374) (italics mine):

*

The facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion that, 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 United 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 practically to make unjust and illegal discriminating between persons in similar circumstances, material to their rights, the denial of equal rights is still within the prohibition of the Constitution. This principle of interpretation has been sanctioned by this court in Henderson v. Mayor of New York (92 U.S. 259); Chy Ling v. Freeman (92 U.S. 275); ex parte Virginia (100 U.S. 339); Neal v. Delaware (163 U.S. 370); and Som Hing v. Crowley (113 U.S. 702).

"The fact of this discrimination is admitted. No reason for it is shown, and the conclusion cannot be resisted that no reason for it exists except hostility to the race and nationality to which the petitioners belong, and which in the eye of the law is not justified. The discrimination is, therefore, illegal, and the public administration which enforces it is a denial of the equal protection of the laws and a violation of the fourteenth amendment of the Constitution."

I believe that the Supreme Court will come to adopt the reasoning ably expressed by Krekel, D. J., in his charge to the jury in United States v. Blackburn (Fed. Cas. no. 14603):

"By the equal protection of the laws, spoken of in the indictment, is meant that the ordinary means and appliances which the law has provided shall be ased and put in operation in all cases of violation of law. Hence if the outrages and crimes shown to have been committed in the case before you were well known to the community at large, and that community and the officers of the law willfully failed to employ the means provided by law to ferret out and bring to trial the offenders because of the victims being colored, it is a depriving them of the equal protection of the law."

Having established that in fact the victims of the lynchings, generally Negroes, are being denied the equal protection of the laws by the States, in the sense contemplated by the fourteenth amendment, we next come to the question whether the proposed law is "appropriate legislation" to enforce the prohibition which the Constitution has declared against such denial. We find it settled law that in forcing the State to afford the equal protection of the laws the Federal Government can act directly upon such individuals as are the agents of the State, and whose act or neglect constitutes the denial by the State of the equal protection.

This was strikingly exemplified in Ex parte Virginia (100 U.S. 339), where the petition of J. D. Coles, a county judge of Virginia, for writ of habeas corpus was denied and the act under which he was indicted for excluding Negroes from his jury list was found constitutional. The act provided that no citizen otherwise qualified should be disqualified for jury service on account of race, color, or previous condition of servitude, and that any officer or other person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for the cause aforesaid shall, on conviction thereof, be deemed guilty of a misdemeanor, and be fined not more than $5,000.

Mr. Justice Strong says, on page 345, that in Strauder v. West Virginia (100 U.S. 303):

"We held that immunity from any such discrimination is one of the equal rights of all persons, and that any withholding it by a State is a denial of the equal protection of the laws within the meaning of the amendment."

The court says further (p. 345) of the fifth section of the amendment: "It is not said that the judicial power of the General Government shall extend to enforcing the prohibitions and to protecting the rights and immunities granted. It is not said that branch of the Government shall be authorized to declare void any action of a State in violation of the prohibition. It is the powers of Congress which have been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation. Whatever legislation is appropriate that is, adapted to carry out the objects the amendments have in view-whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.

*

*

*

*

"It is said the selection of jurors for her courts and the administration of her laws belong to each State; that they are her rights. * But in exercising her rights a State cannot disregard the limitations which the Federal Constitution has applied to her power. * * Nor can she deny to the General Government the right to exercise all its granted powers though they may interfere with the full enjoyment of rights she would have if those powers had not thus been granted.

*

"We have said the prohibitions of the fourteenth amendment are addressed to the States. ** *** 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. ** * 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. Such is the act of March 1, 1875, and we think it was fully authorized by the Constitution."

As lately as 1912 in Home Telephone & Telegraph Co. v. Los Angeles (227 U.S. 278), Mr. Chief Justice White said, at pages 286 and 287:

The provisions of the (fourteenth) 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 judicial who is the repository of State power.

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.”

And at page 296:

"The immediate and efficient Federal right to enforce the contract clause of the Constitution as against those who violate or attempt to violate its prohibition, which has always been exerted without question, is but typical of the power which exists to enforce the guaranties of the fourteenth amendment.” The provisions of the Dyer bill are within the scope of these decisions. The bill is entitled "An act to assure to persons within the jurisdi tion of every State the equal protection of the laws."

The definition placed on the lynching mob is an assemblage which is usurping the State's prerogative to prevent and punish crime. I suggest here the alternative of line 5, page 2, "to the citizens of the United States by its Constitution to read "to persons within the jurisdictions of the several States, or to citizens of the United States, by the Constitution of the United States ", this in order to