Liberties Union at once called the Governor's attention by letter to the Kentucky statute (Ky. Comp. Stat., sec. 1151; subsections (a) 3 and (a) 5 and laws of 1920, c. 41, p. 187, secs. 3 and 5) under which he was compelled to remove the jailer. The Governor ignored the communication.

Finally a formal petition was filed by Attorney Grover Sales, of Louisville. The Governor then acted. He removed the jailer only to appoint the jailer's wife to the job. A perfunctory hearing for the jailer was arranged before the Governor at which witnesses were not called to prove the jailer's responsibility for the seizure of the prisoner. When the Governor's attitude was known the Civil Liberties Union refused to be party to "whitewashing" by conducting the prosecution itself, believing that the responsibility rested solely with the State. The jailer was, of course, exonerated and reinstated in his job.

No effort was made by the local prosecuting attorney or by the attorney general's office to investigate the lynching nor to identify the lynchers. The matter was left in the hands of the union's local representative, John W. Taylor, who happened to be a professional investigator, and who in spite of threats to his life endeavored to get evidence. Such evidence as he got was ignored by the prosecuting officials. Mr. Taylor then ran as a candidate for the legislature, the main issue being the lynchings, and was overwhelmingly elected. This indicates, contrary to the facts in most lynching cases, that community sentiment backed prosecution of the lynchers; that the lynching evidently was the work of a small but influential group of Merrick's enemies; and that if the State officials had been vigorous in enforcing the law, the lynchers could have been identified and brought to justice.

The next case to which I would like to call your attention is the San Jose incident in California.

On Sunday, November 26, 1933, two men charged with kidnaping and killing a young business man of San Jose, Brooke Hart, were taken from the jail in the heart of San Jose by a mob and hanged to a tree in the public park opposite. These men were John Holmes and Thomas Thurmond, both residents of San Jose and connected with families of some standing in the community. Public opinion had been stirred by the kidnaping, and excitement aroused on that Sunday by the finding of the body of the victim in San Francisco Bay. Several weeks had elapsed between the arrest of the prisoners and their lynching. During that time the Federal authorities had been active in getting evidence against them under the Federal kidnaping statute. For this purpose they had been taken to the jail in San Francisco, but were returned to San Jose despite rumors of possible violence.

Although the coroner's jury exonerated Sheriff Emig, of San Jose, of responsibility for the seizure of the men, all of the facts reported unanimously by the press indicate that no resistance was offered to those who battered down the jail door, "overpowered the officers, got the keys, and took out the men.

Further, the Governor of California was openly party to the lynching, which he approved. He had refused when the lynching was threatened to send in State troops; and he publicly stated that

he had postponed a trip out of the State so that no other official could call out troops in his absence to protect kidnapers. He praised the work of the mob at San Jose "as California's lesson to the country."

The Civil Liberties Union immediately posted a public reward of $1,000 for information leading to the conviction of any leader of the mob. It sent to San Jose its California attorney, A. L. Wirin, of Los Angeles, and Ellis Jones, of its southern committee. They both spent several weeks in San Jose gathering evidence which was presented to the district attorney. Although the evidence appeared Conclusive to the attorney, the grand jury to which it was presented refused to indict.

One boy, A. Cataldi, was held by the district attorney, since he was unavoidably identified with the lynching through his own boastful statements made on the occasion to the newspapers under his own signature. Community sentiment was opposed to prosecution. Nothing but perfunctory moves were made, and then only under pressure of unavoidable facts.

Efforts were also made by the Civil Liberties Union to find a legal basis on which to proceed against the Governor as an accessory, but nothing was found under which this action could be taken; and the proceedings of impeachment and recall are too cumbersome or remote to be useful.

We have requested our attorney, A. L. Wirin, to send to the Senate his own factual statement of his experiences in San Jose. We feel that this account indicates the impossibility of prosecution in the face of hostile community sentiment dominating local officials.

Two days after the lynching in San Jose, Calif., a similar lynching took place in a city with the same name in English in Missouri, and by leaders obviously inspired by the example of San Jose. Lloyd Warner, a Negro youth, charged with first-degree murder, was taken by a mob from jail and hanged. The mob was evidently excited by the California lynching. Local and State officials at once took a vigorous stand; so did the newspapers. The attorney general was directed by the Governor to take charge of the proceedings. As a result, nine men were indicted by the grand jury. So vigorous was this action that no stimulation on the part of any outside organization such as the American Civil Liberties Union was necessary.

The cases were evidently well prepared by the district attorney's office. One man, John F. Zook, was brought to trial on December 7, 1933, and although there was conclusive evidence of his being part of the mob, the jury acquitted him. The district attorney was then forced to nolle prosse the remaining cases, since he had brought his strongest case to trial.

This State official did everything possible for any attorney to do, and still he could not get anywhere because the jury acquitted the defendant.

This is another illustration of the futility of action by State law against local community sentiment, even where, as in this case, the officials were not controlled by that sentiment.

Our last case had to do with the lynching in Maryland. Although the American Civil Liberties Union participated in the attempt to bring to justice the lynchers of George Armwood, Negro, we under

stand that the committee will get the story much more fully from witnesses more competent to speak than we are. It is sufficient to say that our posting of a $1,000 reward for information leading to the conviction of any member of the mob brought not a single bit of information from any source, despite the fact that the identity of the lynchers was known to a very large number of people. We submit to the committee as a result of our experience the following

conclusions:

1. That State laws against lynching or the State prosecution of lynching are ineffective against community sentiment supporting the lynching, even when the prosecution of the officials was vigorous.

2. That even where community sentiment was opposed to lynching, as in the Kentucky case, members of the lynching mob may be influential enough politically to thwart action by local prosecutors and even by State officials.

3. That no amount of pressure by newspapers, officials, or the offering of a reward are sufficient to counteract local sentiment and thus to reveal the identity of lynchers or to convict them when identified.

That has been our experience in the last 2 or 3 years in having to do with the lynchings of white men and Negroes.

Finally, I would like to say that it has been my experience in courts that judges, as a rule, are not wholly influenced by questions of law and fact, but, like everybody else, by emotions. If the Supreme Court wants to sustain the constitutionality of this law, it will do it. Imagine the attitude of anybody who has in mind the execution of the atrocious crime of lynching, of participating in an act in which a man is legally put to death. The matter of trying to determine whether or not a particular act is constitutional depends upon geography, as I have heretofore stated. So, when you want to sustain the constitutionality of a law, you can find many reasons why you should do it. I can assure you there are plenty of authorities in the books which indicate that if the Supreme Court of the United States thinks an act is a wise act, it can find plenty of reasons to sustain the constitutionality of it.

Senator VAN NUYS. In relation to the question asked you by Senator Costigan, Professor Chadbourn, in his book in 1933 sets out the fact that 11 States provide for recovery against the city or the county in which a lynching and resulting death occur. Does that correspond with your opinion, that practically 11 States have such statutes?

Mr. HAYS. Yes; the result has been in South Carolina, for example, the statute has been enforced, and lynching has greatly decreased. Take the Scottsboro case. The general attitude of the community in that case has been very expensive to the State. There have already been four trials, and now two men are under conviction. It is very doubtful whether the present verdict will stand. There again is a case of the Federal Government interfering. Otherwise, those nine defendants would have been put to death long before this, on the theory that there was due process of law in the State courts. The public sentiment down there is that it is terribly expensive to have to continue these trials, and that these men should have been lynched immediately. If under the law it proved to be more expensive to

lynch a man than to give him a trial, you would not have such a situation as that in that or any other community.

It is said that one reason for lynching is because of the law's delay. That is all nonsense. Men have been taken out of court after conviction and lynched. They have been taken out of jail while awaiting hanging and lynched. It is not because of the law's delay. Another suggestion is that if it were not for lynching these crimes would be more general. Of course, that is the argument always made by people who want to take the law into their own hands. That is not the reason for it. The reason is that it is believed it would save the country a lot of money. I am sure nobody will contend the Negro gets the equal protection of the law. The only way by which he can ever get it is through the passage of this or a similar bill.

Senator DIETERICH. Of course, this bill does not deal with the lynchers. It deals with officers who permit lynching or human life to be taken without due process of law.

Mr. HAYS. Yes.

Senator DIETERICH. In reference to the cases you cited of juries refusing to convict or indict, that happens in relation to many other criminal cases.

Mr. HAYS. Yes; many.

Senator DIETERICH. That is not an unusual case.

Mr. HAYS. No.

Senator DIETERICH. That is not the only class of cases where that happens. It happens in murder cases and other cases where local sentiment is aroused.

Mr. HAYS. I regard that as a distinct classification. I have been asked whether my argument would not indicate that the Federal Government must not pass a law against murder in general. I say that if the same distinction exists, if murder is not prevented by the State, the Federal Government would have an undoubted right to pass such a law.

Senator DIETERICH. The fact that such cases might be tried in the Federal courts would not deprive the defendants of the right of trial by jury.

Mr. HAYS. Not at all.

Senator DIETERICH. They would still be tried by local juries in that district?

Mr. HAYS. Yes, sir.

Senator DIETERICH. And possibly swayed by the same sentiment as a local jury in the State court?

Mr. HAYS. Possibly, but I am not quite so sure of that. This bill provides that in the event the State takes no action, then the case inay be removed to the jurisdiction of the Federal Government.

Senator DIETERICH. I say that because I do not believe any lawyer will disagree with you on the proposition that lynching is unlawful and should not be tolerated by any community or subdivision of the Government. The only question I have in mind is the question of penalizing the State or municipality when they are really not at fault, when they have done everything they could to try to prevent it. Lynching is always done by irresponsible parties. It is not done by the highest type of citizenship, but usually the lower type of citizenship. There is no question about that.

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Mr. HAYS. I regret that I cannot agree with you. I think that there is considerable question about it. There are sections of the country where lynching is acquiesced in by the highest type of citizens, who are fully aware of what the lowest type is doing. Senator DIETERICH. That is mob action.

Mr. HAYS. Yes, sir.

Senator DIETERICH. The high type of gentlemen who try to incite the mob pull themselves down to the level of the mob.

Mr. HAYS. How about the Governor of California?

Senator DIETERICH. I do not know anything about the Governor of California. If you want to put me on the spot as to that, I say that I think he was just as wrong as he could be. Regardless of any local sentiment, it should not be encouraged by a public official. Every citizen has the right to be tried under the laws of his State or the land.

Mr. HAYS. Perhaps the trouble with the Governor was that he was too outspoken. A good many other high officials may entertain the same view, but are not frank enough to express themselves openly. A good many public officials feel the same as he did. I have no doubt that a large number of public officials in Alabama think the Scottsboro case has been and is a very great expense, and if one or two had been lynched it would have saved a great deal of expense and trouble in Alabama.

Senator DIETERICH. The sentiment against kidnaping in this country is very strong, and I assume the sentiment among the highminded people has probably reached the point where they would be willing to tolerate any expense that could be inflicted to get rid of that crime.

Mr. HAYS. There is a distinction between those who are guilty and those who we think are guilty. In the California case we have evidence that one man was weak-minded and would have had a good defense in a law court.

Senator DIETERICH. I agree that it would be dangerous to put the enforcement of the law into the hands of the mob. Many times innocent men, against whom an accusing finger has been pointed, have been destroyed by reason of the fact either that publicity had been given to the case, or through some erroneous investigation a presumption arose pointing toward guilt, when in fact the party was really innocent. I agree that a crime of that kind should not be tolerated.

Mr. HAYS. Senator, I should like to call your attention to an experience we had recently. During the mine trouble in Kentucky last year, there was a suggestion that the Civil Liberties Union should send a commission down there to see if we had the right as free citizens to investigate the situation in Bell County. I received a letter from the prosecuting attorney that if we came down there we would not be permitted to make an investigation. We were turned back at the border of the county, after making an effort to proceed with the investigation. We never got anywhere, because of Paul Smith, the prosecuting attorney down there, preventing our entering the county. He gave it as his opinion that they regarded our investigation as provocative.

You have in many parts of this Union a local Fascist government. They do not have an executive, legislative, and judicial department,