Every lynching, whether the victim was innocent or guilty, is a disgrace not only to the community where it has occurred, but to the entire country. It is an evidence of the lack of confidence in the honesty and efficiency of our judicial processes. It is an insane mob, swept by the most primitive passions, taking the law into its own hands. It is a mockery of the duly constituted officers of the law. It is a lynching not so much of the individual, but of the courts, citizenship, of the Government itself. I care not how revolting was the crime committed, even more revolting is the spectacle of a band of armed men destroying a life, without due process of law.

The law is spat upon whether the man is innocent or guilty. But the crime becomes even more ghastly when, as is sometimes the case, the victim is innocent. In the lynching which occurred here there is much evidence to prove that no crime had been committed. The Negro youth, Cordie Cheek, had had a fight with a white boy at the very hour when the alleged assault for which he paid with his life was said to have occurred, namely, a little before 4 o'clock, on November 16. It was not until 2 hours later that the assault, or attempted assault, was reported. The Maury County grand jury refused to indict him. He was ordered set free, after he had been lodged in the Davidson County jail. He knew that he would not be safe in Maury County, so he did not think of returning there. No one dreamed that an effort would be made to kidnap him here. I am not attempting to take the part of judge and jury. I merely say that there is much evidence to show that he was innocent of the crime for which he was lynched. If lynching is vicious, when the victim is guilty, how much the more is it to be condemned, how much more earnestly should we labor to eradicate it, if the victim is innocent, as is sometimes the case? For who can now repay him what he has lost?

I know that there is not a single person within the hearing of my voice who does not agree with me that lynching is a vicious, brutal, bestial, barbarous, inhuman crime against society. The question is, what are we going to do about it? The victim, innocent or guilty, is dead. The brutal crime has been committed. Shall we now wait until the feelings of our citizens are once more outraged, and then condemn lynching again? Or shall we determine that justice shall not again be miscarried, the integrity of our courts not be again assailed and made a laughing stock, the fair name of our State and country not again be besmirched?

I beg leave to offer a few suggestions.

In the first place, lynching should be made a Federal offense. Many attempts have been made, notably by the National Association for the Advancement of Colored People, to have such a law placed upon the statute books of our land; but, thus far, without success. It is well known that criminals have little fear of local and State laws, but they stand in dread of Government officials. Al Capone broke practically every law upon the statute books of the State of Illinois with impunity. Everyone knew he was a bootlegger, everyone knew he was a murderer and a gangster, yet he ruled the underworld and a good part of the upper world of Chicago without being disturbed. The Federal Government placed him where he belongs, where, in fact, he should have been placed years ago.

If it were a Federal offense, punishable with a long prison term, for anyone to take part in lynching, many would think twice before joining a mob. It is also beyond question that the Federal authorities are less swayed by local passions than State and community officials.

Secondly, speeding up the processes of justice so that criminals may be more certainly apprehended and made to feel the penalty of the law. This can be accomplished, without waiting for Federal legislation. Governor McAlister has indicated in no uncertain terms that he means business, that the perpetrators of the most recent crime will be identified and punished. If the guilty men get off scotfree, encouragement will be given to more lynchings.

Thirdly, and this is the most important of all, public opinion must be aroused against this "vile form of collective murder ", as President Roosevelt called it. It goes without saying that no law is effective, no punishment, drastic though it may be, is a deterrent. if the public sentiment and public feeling are not behind it. The "good people", so called, the representative people, the lawabiding people of every community must be made to realize that indifference to the horrible problem of lynching is treason to good government and subversive of simple justice. If the mob can rule in one situation, it may rule in another. Who will then be safe?

The American people have the unhappy reputation of being governed by more laws than any nation on earth and being more disrespectful of them. The mere passing of a law solves no problems. Even the severest punishment for their infraction is no deterrent to crime. What we need is fewer laws and more respect for them. It is up to the people themselves to demand an end to the misrule of thieves, gansters, and lynchers, whether they occupy high places or low. Ministers of religion can carry on this battle for social righteousness and social justice by dwelling less upon the sins of the Amalekites and more upon the transgressions of our own time. Educators can do their part by instilling respect for law in the minds of the youth and of encouraging them to battle against every form of social iniquity. The citizens of each community of our State can inform our governor that they laud the stand of a southern governor against this base form of collective brutality and that they will stand behind him in his administration of justice. The press has already made a distinguished contribution to this cause and should be encouraged to carry on its antilynching propaganda. All this should be done out of self respect as human beings and out of respect for the laws of the land. Our slogan must be, "The mob shall not rule in Tennessee."

Only when we have done our utmost in waging the battle for righteousness. justice, and humanity, may we be worthy of saying: "Our hands have not shed this blood, neither have our eyes seen it." In the meantime, we can only pray that God may "forgive us and not suffer innocent blood to remain in our midst." A splendid citizens' committee under the leadership of men like Judge John Aust, Prof. Edwin Mims, and Dr. James I. Vance, has already been formed to wage unceasing warfare against the pernicious and unholy spirit of unbridled passion and base lawlessness inherent in mob violence. They recognize that it is not the criminal elements but law and order, the very foundations of democracy and justice upon which our great Republic is founded, that are on trial.

To them and to all other forces for liberty and fair play that are engaged in conserving our historic traditions of justice to the weak as well as to the strong, to the small as to the great, to the humble as to the exalted, let us give our enthusiastic support and encouragement, to the end that the eter: al hope which breathes in the poet's prayer may be realized:

America, America, God mend thine every flaw,
Confirm thy soul in self control,

Thy liberty is law.

STATEMENT OF ALAN A. COLCORD, NEW YORK CITY

Senator VAN NUYS. The next speaker is Mr. Alan A. Colcord, 36 West Forty-fourth Street, New York City, who desires to make a statement relative to the constitutionality of this bill.

Mr. COLCORD. On January 4, 1934, Senator Costigan and Senator Wagner introduced an antilynching bill in the Senate; it has been referred to the Committee on the Judiciary.

In its main features, it closely follows the Dyer antilynching bill of 1922, which met defeat on the floor of the Senate as the result of a successful filibuster by a group of southern Senators, led by Oscar Underwood.

Governor Rolph, of California, unwittingly gave a great impetus to Federal legislation on lynching when he publicly announced his refusal to intervene in the San Jose case, and extolled those who participated in the lynching.

The time is ripe, as never before, to curb this peculiarly American crime, and to give real substance to the constitutional guaranty of the equal protection of the laws.

The justification for a Federal antilynching law is to be found in the peculiar nature of the crime itself, and the consequences flowing from it.

When a prisoner is violently taken from the custody of the law by a mob and lynched, the orderly processes of Government are successfully assaulted and set at naught. Let the State agencies complacently submit, or negligently fail or refuse to apprehend or prosecute the known participants in the lynchings, then, in effect, the State abdicates her sovereignty in favor of the mob and acquiesces in her own overthrow. Not only does this follow, but the constitutional guaranty of the equal protection of the laws becomes reduced to mere platitude.

Although other forms of mob assault upon government meet with vigorous effort to search out and punish the offenders, lynchers generally enjoy immunity from prosecution.

There are but few who are so naive as to expect that all criminals will be apprehended or all crimes punished. Crime will exist and go unpunished until we arrive at the Utopian state, pictured by Sir Thomas More, where no crime exists. But it is altogether realistic and reasonable to expect that every effort will be made by those in authority to enforce the laws and to maintain orderly processes of government against mob assault.

If an American citizen in a foreign country is assaulted or done to death by a mob, the foreign government is held answerable. No excuse or plea by a foreign state that it could not control mob violence can avail. Although compensation may be payable under treaty agreement, the sustaining principle of the treaty is that every civilized State is held to the absolute obligation to afford adequate protection to foreign nationals within its jurisdiction.

Similarly the United States Government is held answerable by foreign governments for assault or for the loss of life of our nationals as a result of mob violence. According to the Judiciary Committee report on the Dyer bill of 1922, Congress appropriated and this Government paid to other governments, to compensate for murder by lynchings of their citizens by Americans mobs, no less than $792,499 for 100 murdered foreigners.

The act of the mob in putting its victim to death, though savage and degrading, is hardly the most consequential; the more consequential one is the bold assault upon the orderly processes of law involved in the act, and the acquiescence of the State by allowing the participants to walk the streets free and unpunished.

The repercussion is not merely local or even Nation-wide: it becomes international in its scope, bringing our Government into derision and contempt abroad. In its ultimate national consequences it really becomes an assault upon the peace and dignity of the United States. Furthermore, the constitutional guaranty of the equal protection of the laws becomes stripped of all substance and reality when the known lynchers go unpunished.

A Federal antilynching law would be an appropriate measure to more effectually secure this constitutional guaranty. It would not only seek the stamping out of this crime, but the vindication of orderly government and of fundamental rights. It would be a justifiable intervention to suppress mob conspiracy or uprising bent upon nullifying the constitutional guaranty.

From the earliest times, every civilized State has recognized its obligation to maintain the law against mob violence, and yet since

1889 approximately 4,000 lynchings are reported as having occurred throughout the country.

Although a large number of States have enacted antilynching laws, including many Southern States, nevertheless lynchings still continue even in these States and the participants enjoy practical immunity.

The provocation for a lynching is often attributed to a lack of confidence in the prompt and efficient administration of the criminal laws, or a fear that the accused will escape punishment through technicality or appeal. It has, therefore, been urged that the cure for lynching lies in the tightening up of criminal law and the closing of legal loopholes in our criminal procedure. The statistical facts belie any such premise. A mob intent on lynching is usually composed of the lower elements of society; propertyless and irresponsible; the very nature of the act itself is the negation of any concern for law or fundamental right. Records show that many persons have been lynched during the course of a speedy trial or after conviction and sentence of death. The motivating cause is to be found in the emotional outbreak of irresponsible groups, the analysis of which is not at all material. It is material that lynching is tolerated and that there is a failure to prosecute. This failure probably lies in our elective system and in the very nature of our democracy. Lynching usually thrives in rural communities or in sparsely settled counties where the elective officials are so close to their constituents. including the participants and their sympathizers, that they are unable to free themselves from the inflammatory feeling which prompts the crime or from the rule of political expediency.

Under a Federal law, prosecution would be placed in the hands of the Federal authorities, who would be removed from this local pressure and the prospects of a speedy and prompt administration of the law would be greatly enhanced."

In considering sound legislation directed toward curbing the lynching evil, elementary principles should not be overlooked. The administration of the criminal law and the apprehension and punishment of offenders lie peculiarly within the province of the several States. Under its delegated powers, the Federal Government may punish for such crimes as counterfeiting, maritime crimes, and those connected with interstate commerce, but this is founded upon the express delegated powers given the Federal Government in the Constitution. Under the interstate clause lies the recent enactment of the Federal kidnaping law; its scope and constitutionality being entirely premised upon the commerce clause.

Under the Federal Criminal Code, murder is a punishable crime if committed within the exclusive jurisdiction of the Federal Government, such as murder committed in a United States fort or post office or in Indian territory. There is, moreover, a rule of comity which must be recognized in the intimate relationship existing between the Federal Government and those of the several States, whereby the presumption should be indulged in that the governments of the States are properly performing their functions in administering orderly processes of law. Aside from any constitutional right of interference, it is manifestly impractical for the Federal Government to undertake the prden of wholesale enforcement of criminal law in the severa' S.ates.

*

With these principles in mind, we come to a consideration of the provisions of section 1 and 5 of the fourteenth amendment to the Constitution providing that "no State shall deny to any person within its jurisdiction the equal protection of the laws" and by section 5 "the Congress shall have power to enforce by appropriate legislation the provisions of this article."

It is clear that Congress has the right to pass legislation to enforce this constitutional guaranty. Since 1870 there has been in existence a statute, being section 5508 of the Revised Statutes of the United States, making it a crime to conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or the laws of the United States and imposing a fine of not more than $5,000 and imprisonment for not more than 10 years upon conviction. The constitutionality of this statute relating to conspiracy and section 5510 relating to civil rights has never been questioned. A Federal antilynching law would constitute legislation along the same general lines as the statutes, but would be specifically directed toward the punishment of lynching as a crime and should provide for Federal prosecution of the participants in case the State officials refused to act or negligently failed to do so.

It is submitted that the proposed legislation should provide for Federal intervention only in the case of a preliminary affirmative showing of State refusal or negligent inaction.

This is manifestly based upon both necessity and the rule of comity.

As was stated in the case of Covell v. Heyman (111 U.S. 176, p. 182):

The forbearance which courts of coordinate jurisdiction, adminstered during a single system, exercise toward each other, whereby conflicts are avoided by avoiding interference with the process of each other, is a principle of comity with perhaps no higher sanction than the utility which comes from concord; but between the State courts and those of the United States, there is something more. It is a principle of right and of law, therefore, of necessity.

The United States Supreme Court has frequently declared unconstitutional State statutes which violate the constitutional guaranty of the fourteenth amendment. (Ex Parte Virginia, 100 U.S. 339; Slaughter Houses cases, 16 Wall. 27; Sonn Hing v. Crowley, 113 U.S. 703; Yick Wo v. Hopkins, 118 U.S. 357.)

In the latter case the city of San Francisco passed an ordinance discriminating against Chinese laundrymen, and the court held this unconstitutional, and at page 373 of the opinion the principle was declared:

When the facts shown establish an atmosphere 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 ordinance 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 of 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 42640-34-PT 1-5