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monly failed to proceed against the criminals, making the usual excuse that convictions would be impossible. But Judge Sinclair refused to tolerate any such mockery of justice. Instead, he ordered the local sheriffs, on pain of summary jailing for contempt, to bring in the culprits, the local grand juries to indict them, and the local State's attorneys to prosecute them vigorously. With his honor's steely eye upon the jury box and witness stand, the accussed were convicted by the carload and sent to prison for long terms, and Ku-Kluxry promptly adjourned.
IV What an honest and competent State judge thus achieved might be done just as well, and no doubt much easier, by Federal judges. They sit ordinarily in large cities, and have at their disposal grand and petit juries made up not of village loafers but of city men of the better class, not many of whom have any sympathy with assassins. The prosecuting attorney who works with them is not a neighborhood Buzfuz itching for higher office, as in so many of the county courts, but a lawyer of some ability and dignity. And this prosecuting attorney has at his disposal, for searching out evidence, the whole detective force of the Department of Justice, composed of men who are not afraid of criminals, and do not hesitate to shoot when they are molested.
To be sure, it is the custom for a Federal court, in trying local cases, to move into some convenient county-town, mainly for the purpose of saving the traveling expenses of witnesses. But it commonly keeps to its home grounds for the trial of cases of any magnitude, and so far as I know it is not required to go on circuit at any time if it prefers not. In any event, its prosecuting officer remains the same, and it uses the same city grand jury and has the aid of the same Federal police. Even the rustic petit juries, facing it, know that the judge on the bench is something far different from the local Dogberry, who is probably known to most of the jurymen by his first name, and has in his time solicited the votes of all the rest. Federal judges sometimes know less law than they ought to know, and show other lamentable defects, but they are at least out of politics, and it is rare for one of them to be lacking in either personal assurance or professional zeal.
Thus the Costigan-Wagner bill had better be taken seriously in the Bible Belt. It was drawn by two of the best lawyers in the Senate, and has long teeth. some of them ground to a razor edge. That President Roosevelt is behind it is very likely, for he has twice denounced lynching in plain terms. Unless the friends of the great evangelical sacrament get busy promptly it may very well slip through the Senate and House. I advise the boosters of Moronia Felix, both clerical and lay, to call meetings of moral protest a' once. If they dally they may be damned.
STATEMENT FROM WILLIAM ALLEN WHITE
Senator Van Nuys. We invited William Allen White, of Kansas, to be present today. It was impossible for him to attend, but he sent a very interesting statement, which I will ask Senator McCarran to read into the record at this time.
Senator McCARRAN. This is on the letterhead of the Emporia Gazette, Emporia, Kans., dated February 19, 1934, and reading as follows:
DEAR SENATOR VAN Nuys: I wish the following statement included in the record of hearings urging passuge by Congress of the ('ostigan-Wagner antiIynching bill: Lynching is one of the few crimes which can be prevented by precautionary measures. The fear of punishment will stop lynching if the punishment is reasonably certain. Sometimes brave men commit crimes of violence or cunning. But lynchers are always cowards. Lynching is the only crime invariably executed by cowards who require the presence of other cowards to nerve them in crime.
The passage of a Federal lynching bill haleing the lynchers into court outside of the county in which the lynching occurs, will naturally almost automatically remove the cowardly defendant from the circle of commending public opinion and hence bare his crime to the contumely which it deserves. He knows the inob protects him from the law in the courts.
Instinctively he feels safe when he lynches. He senses the truth that it is impossible to convict a member of a lynching mob in the community which encouraged or permitted a lynching. For the community responsible for the crime inevitably biases any possible jury assembled under our modern method of choosing juries. Conviction for lynching is only possible outside of the area which condones a given lynching. For unfortunately under our jury system which rejects a man intelligently informed automatically the system has to accept a man of the type who would join a mob or justify it in the court and community. The same man outside of the community where the lynching occurred would be properly horrified by it and so would vote to convict where he would be stubborn for acquittal near the scene of the lynching.
The Costigan-Wagner bill, taking the trial for the lynching away from the scene of the crime, will make conviction so easy that the mob spirit will hesitate and dissolve into inaction. One or two Federal convictions will do more to stop lynching than all the resolutions passed by all the good-will societies, all the tall talk indulged in by all the humiliated governors, and all the moral indignation released by all the uplifters in the United States.
For the crime of lynching is a preventable crime. It will be prevented if the cowards who invariably form the mob can only know that there is a God in his Israel and a jail yawning at the end of the debauch. I most earnestly urge the passage of this bill.
WM. A. WHITE.
STATEMENT OF ARTHUR GARFIELD HAYS, NEW YORK CITY,
REPRESENTING THE AMERICAN CIVIL LIBERTIES UNION
Senator Van Nuys. The next proponent will be Arthur Garfield Hays. Mr. Hays has attained an international reputation in suits involving civil liberties. It is a pleasure to have him with us today.
Mr. Hays. Mr. Chairman and gentlemen of the committee, this is at least one bill which I can talk about without anybody questioning the fact that I am wholly disinterested. The reason for that is, obviously, that lynching is a crime perpetrated against poor, friendless, helpless people. If the 4,000 or 5,000 lynchings in the last 30 years had been of people of a different class, it is needless to say something would have been done about it before now.
Last fall I was in Germany for about 2 months. Naturally, a good many discussions turned on the Jewish question over there. Invariably the Nazis would say to me, “ How about Negroes in the United States? ” I would point out, of course, that in the United States all men were equal before the law, and that there was no discrimination by law, whereas in Germany there was discrimination by law. I need hardly tell you that I was not at all satisfied with my answer. If the Germans had had a greater appreciation of the situation in the United States, they might have riddled the distinction between equal protection by law, and the deprivation of that equal protection, because we know perfectly well that the colored people in the United States do not have the equal protection of the law.
When you come to this antilynching bill, I think that you should bear in mind that, while the figures show that perhaps one sixth of the persons who have been lynched have been white people, there are 10 times as many whites as Negroes in this country, and to get the idea of per capita effect you must multiply the number of lynchings by 10, in which case you will get 35,000 as compared with 700 or 800. So we may assume that 96 percent of those lynched were Negroes, from which point we come to the proposition of whether or not in a legal sense the Negro has the equal protection of the law.
Reference has been made to the constitutionality of this proposed law. I presume the question of constitutionality of this bill, as of the Dyer bill, is largely a question of geography, meaning, of course, that men come to conclusions about these matters largely because of their own predisposition. The logical situation is perfectly clear to my mind that the Federal Government, being a Government of delegated powers, has no right to act on crime in a State unless it happens to occur on Federal territory, so we must look for justification for a Federal bill somewhere else in the Constitution, and we have it under the fourteenth amendment.
I would like to read the wording of the appropriate section, because that section does not seem to have been covered.
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States
If the amendment ended there, in my judgment, this act would be constitutional. That refers to a State making a law which abridges the privileges or immunities of citizens. But it goes further and says: por deny to any person within its jurisdiction the equal protection of the laws.
In other words, there must be something in the fourteenth amendment that refers to the action of the State which did not concern the making or enforcement of laws.
Senator McCARRAN. May I interrupt you for a question or will it annoy you?
Mr. Hays. Not at all, sir.
Senator McCARRAN. That latter provision of the organic law, in my judgment—and I propound this question to you for the purpose of discussion-relates particularly to the individual. In other words, the individual has the right under the organic law to have extended to him the equal protection of the law. But when an offense, such as the act of lynching, has been consummated, who then has the right to make the demand? Does that provision of the Constitution contemplate a continuation, after there has been a con-ummation of the act, in which the right to the organic law has been taken from an individual?
Mr. Hays. It would not, except that section 5 of the fourteenth amendment states that the Congress has the right to enact appropriate legislation to enforce the previous sections. I am coming to that. What is appropriate legislation? The courts have differed as to whether legislation is appropriate and necessary, but if some legislation is appropriate and necessary it seems to be the general opinion that the Federal Government has a right to intervene.
Senator McCARRAN. Will you pardon me again?
Senator McCARRAN. The matter comes rather vividly to me, in view of our discussion of the law in a different way and under different circumstances in the Senate of the United States last week, on the question of whether when a contempt has been consummated and there was no further continuance of the contemptuous act the Senate has a right to prosecute for a past contemptuous act. apply that same analogy to the latter part of that amendment, does that mean that where you have a consummated act, a complete act, the law would be construed to extend the penalty for the lack of having given the individuals equal protection under the law?
Mr. Hays. Senator, I think you would be perfectly right if the act were directed against lynchers. If the bill applied to the lynchers themselves, I think your point would be a good one; but the violation of law covered by this proposed act relates to sheriffs, State or county authorities, who are to be subject to penalty. In other words, the act does not directly protect individuals as citizens of the United States. It penalizes officers of States or sheriffs who fail to give people the legal protection of the law. That is the distinction, to my mind, between other laws which might be directed toward lynchers, and a Federal law directed against a State or the agents of a State.
You are no doubt familiar with the case of Ex Parte Virginia, (100 U.S.), which is a leading authority. It was a habeas corpus proceeding brought by Judge Cole. He was charged with discrimination in the drawing of jurors. The United States law provided that such discrimination was a crime, and that any officer who did so discriminate would be penalized. Habeas corpus was brought to the Supreme Court of the United States, which court said that law was constitutional. If you want to distinguish that situation from one where a sheriff fails to give equal protection under the law, it is exactly in the same position as the judge in the Ex Parte Virginia case. It seems to me a very potent authority.
Senator MoCArran. Pardon the interruption. You may proceed.
Mr. Hays. I think it is much more useful to discuss things as we go along rather than simply make a speech. If there is anything I say that raises a question in your minds, I hope that you will check me up.
Senator Dieterich raised the point about whether the penalty proposed to be imposed upon a county should be imposed only when there was negligence on the part of the sheriff. In connection with that I think it is interesting to note that the southern commission on the study of lynching has prepared a formal State's bill, and in that bill it is provided that the county shall be liable to each lynched person, or the family of each lynched person, in the sum of not less than $2.000 nor more than $10,000, to be recovered in a civil action. That is irrespective of negligence on the part of county officials. I think you will be interested in the law of Illinois providing that the children or the family of any person or persons, or anyone dependent upon them for support, who may be lynched in any county or city in that State, may recover from such county or State or city damages in the sum of not to exceed $5,000. In other words, under your State law there is no question of culpability, nor is there in the draft of the proposed bill of the southern commission.
Senator COSTIGAX. Mr. Chairman, may I a-k a question at ihis point!
Senator Van Nuys. Certainly.
Senator Costigax. Before you proceed further, Mr. Hays, let me ask you if there have been any cases under the State laws you have referred to for damages where those damages have been recovered for the benefit of the families of the deceased in cases of lynchings! Mr. Hays. There has been in South Carolina. Incidentally, there is a table in this book of Mr. Chadbourn's on that subject. As to that table and the effect of the law he says:
The table shows that each county which has been fined has had no more Iynchings, and the average number of lynchings per year has decreased sharply after the infliction of each penalty.
I cannot imagine anything more effective than that, coming from the southern commission, to show how effective that law would be.
To come back to my general argument, I have referred to the fourteenth amendment, and the distinction between the provision that no State shall pass any law which will deprive a citizen of privileges or immunities, and no State shall deny equal protection of the law to a citizen. But what does equal protection of the law mean, and how can the Government enforce it? The Government by Federal law could not act against lynchers. That is within the province of the State, but, as indicated by the Ex Parte Virginia case, action may be had against a State, a subdivision, or officer of a State acting as its agent. The books are full of cases where by Federal law agents of the State have been held under penalties by the Federal law.
And in further reference to the question of constitutionality, I think it is interesting to note that Chief Justice Hughes was a member of a national commission which in 1919 unaminously passed a resolution to the effect that lynching be made a Federal crime punishable by United States courts. This is a fair indication of rather dignified support.
Also, in connection with the Dyer bill, the report on the bill said:
We conclude that the enactment of this bill will insure to persons within the jurisdiction of the various States equal protection of the law and prevention of the crime of lynching reasonably certain.
That was written after these briefs had been submitted, and that was the conclusion of Mr. Dyer and his committee.
There is one other matter that I would like to draw to your attention, and that is the attempt of the American Civil Liberies Union to do something in connection with lynching. It has in various cases endeavored to bring lynchers to justice. While the union does not devote itself usually to combating the lynching of Negroes, this function has been exercised in cases where the victims were white men, and has been on request in some cases where the victims were Negroes. The following account of efforts in Kentucky and California demonstrate clearly the ineffectiveness of State laws:
Walter Merrick, a white man, charged with dynamiting, was taken by a mob from the jail at Princeton, Ky., on May 31, 1932, and hanged. The Kentucky statutes provide for the punishment of lynchers and for the automatic removal by the Governor of the jailer from whom the lynch victim was taken. The Civil Liberties l'nion, through a local representative, John W. Taylor, started an investigation to identify the lynchers and bring them to justice. A reward of $500 was publicly posted for information leading to the final conviction of any member of the lynching mob. Governor Laffoon was called upon by the union and by its Kentucky members to offer a public reward for the same purpose. After weeks of delay, the Governor finally made an offer of $200 by the State. The Civil