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discrimination between persons of similar circumstances, material to their rights, the denial of equal justice is still within the protection of the Constitution.
In the case of United States v. Powell (151 Fed. 648), it was held that Congress may legislate to prohibit a conspiracy against one in the custody of State officers.
The Supreme Court has furthermore held that the denial of the equal protection of the laws need not be by legislation, Saunders v. Shaw (244 U.S. 317, p. 320), and in the case of Ex Parte Virginia (100 U.S. 339) the court held that in exercising her rights, a State cannot disregard the limitations which the Federal Constitution has applied to her power. At page 346 of the opinion
The prohibitions of the fourteenth amendment are directed to the States and they are to a degree restrictions of State power. It is these which Congress is empowered to enforce against State action, however put forth, whether that action be executive, legislative, or judicial.
Accordingly where a State trial is dominated by a mob so that there is an actual interference with the course of justice, the due process clause has been invoked by the Supreme Court to set the trial aside. (Moore v. De,psen, 261 U.S. 86; Frank v. Mangum, 237 U.S. 309.)
In his dissenting opinion in the latter case Mr. Justice Holmes, at pages 349–350, wrote:
We do not think it impracticable in any part of this country to have trials free from outside control. But to maintain this immunity it may be necessary that the supremacy of the law and of the Federal Constitution should be vindicated in a case like this. It may be that on a hearing of different complexion would be given to the judge's alleged request and expression of fear. But supposing the alleged facts to be true, we are all of the opinion that if they were before the Supreme Court it sanctioned a situation upon which the courts of the United States should act, and if for any reason they were not before the Supreme Court, it is our duty to act upon them now and to declare lynch law as little valid when practiced by a regularly drawn jury as when administered by one elected by a mob intent on death.
The conclusion follows that Congress can pass appropriate antilynching legislation and that such legislation would be constitutional if it were framed in such a way as to avoid unnecessary violence to State rights or infringement upon well-recognized principles. If the proposed law is not framed with due regard to the foregoing, then it might become impractical and unwise legislation which the Supreme Court would declare unconstitutional in whole or in part. STATEMENT OF ARTHUR B. SPINGARN, CHAIRMAN NATIONAL
LEGAL COMMITTEE, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE
Senator Van Nuys. The next speaker is Mr. Arthur B. Spingarn, representing the National Association for the Advancement of Colored People.
While Mr. Spingarn is coming forward, let me say that we have 25 or 30 witnesses to be heard, and it will be necessary for the speakers to curtail their remarks as much as possible and avoid repetition and duplication of argument. This is said in all kindness, but it will be necessary for me to enforce that rule.
Mr. Spingarn, you may proceed.
Mr. SPINGARX. Mr. Chairman and gentlemen of the committee, generally speaking, no opposition to legislation aimed at the suppression of lynching and mob violence and the punishment of those guilty of these offenses is now being seriously urged by any responsible individual or organization. On the contrary, not only the repeated editorials in representative newspapers throughout the United States, but the growing number of laws now on the statute books of the individual States, north, east, west, and south, persuasively indicate that the prevailing sentiment in all sections of the country is in favor of such legislation.
The chief attack against antilynching legislation has been directed, not against the legislation as such, but solely against Federal legislation, and the basis of this attack has been either (1) that a Federal antilynching bill would be unconstitutional, or (2) that such Federal legislation is unwise and unnecessary, because the individual States should and can deal most effectively with these crimes.
Other witnesses will address themselves to the question of the constitutionality of the proposed antilynching bill; this statement will restrict itself to the objecions against any Federal legislation on the subject, based on the theory that the problem is being and can best be solved by State action alone.
I want to digress for a moment long enough to answer a question that was raised by Senator Dieterich this morning. The Senator, as I understood him, questioned the propriety, first, of holding a county responsible for an act with which the authorities had nothing to do and could not prevent and, second, holding the county responsible for the act of the lawless element.
As to the first point, with reference to holding the county responsible for something which it could not prevent, may I say that we have an exact precedent to that effect in the Workmen's Compensation Law, which has been governed not only by Federal legislation, but by legislation in almost all of the States. It does not matter how careful a manufacturer may be, what machinery he has, what precautions he has taken, no matter how careless the employee who was injured, yet when an injury of that sort happens it is borne by the occupation and not by the individual.
As to the second point, holding the county responsible for acts of the lawless element, on the contrary, in most instances, as I will show you from statistics which I will read later, we are holding the county responsible for the acts of negligence of its best element; or at least, we must believe they are the best element, if we believe in a democratic form of government, because they are the elected representatives of the people.
Senator DIETERICH. I probably should have said the most lawless element. Probably that would be a better designation of those who toop to take the law into their own hands.
I might say, as to the Workmens' Compensation Law, that that is not a good analogy. The Workmen's Compensation Law, when it was enacted, took away from the worker the right to recover large judgments, limiting the amount that could be recovered, designating the injury and prescribing the amount of compensation if the injury occurred in the course of employment. And every employer knew when he employed workmen that such a law was in existence, and if
that workman was injured he would be subject to the compensation provided by that law.
The good citizenship of a county or of a city does not have the right or the opportunity to protect itself against those who commit lawless acts. The trouble is, I think, that you are mixing the two. "This is a general law to apply all over the country. You seem to apply it simply to some of the cities in the Southern States.
Mr. SPINGARN. If the Senator will permit, I will show you what happens in Western States and Eastern States and throughout the country.
In examining the records, it is well to keep in mind that the figures that will be cited concerning the number of lynchings and the failure of local authorities to punish those responsible for them are minimum figures and that the figures indicating the number of
persons convicted for the crimes are probably maximum figures. Many secret lynchings inevitably go unrecorded, and local communities very often try to suppress the fact that a lynching has taken place, but any punishment of any lynchers is always given the widest publicity.
From 1899 to date there are 3,744 recorded lynchings, of which 1,588 have taken place in the last 30 years. The careful records kept by Tuskegee Institute indicate that between 1900 and 1930 there have been only 12 instances (with a total of 67 defendants) in which convictions have been secured. In other words, considerably less than 1 percent of the lynchings in the United States have been followed by convictions of any kind. This means that today, under State laws, there is virtually an immunity for all lynchers, the chances of being punished being very much less than 1 in 100.
There were convictions in Alabama in 1900, 1919, and 1920; in Georgia in 1922 and 1926; in Missouri in 1903; in Oklahoma in 1922; in Virginia in 1923; in Minnesota in 1920; in Texas in 1920; and in Illinois in 1903.
And yet, beginning with Georgia, in 1893, State after State has passed antilynching legislation on its statute books.
Among the States that have specifically made lynching and mob violence crimes are:
Alabama, Alabama Code, sections 4939 and 4940; Georgia, Georgia Code, sections 363 to 365; Illinois, Illinois State Statutes, paragraphs 537 to 549; Indiana, Indiana Statutes, 2175, and 2531 to 2536; Kansas, Kansas Revised Statutes, sections 21-1003 to 21-1009; Kentucky, Kentucky Statutes, sections 1151 and 1241; New Jersey, New Jersey Compiled Statutes, section 130; North Carolina, North Carolina Code, sections 1266, 3945, 4377, 4600, 4636, and 4570 to 4573; Pennsylvania, Pennsylvania Statutes, sections 486-a and 4682; Virginia, Virginia Code, sections 4427-c to 4427-h; and West Virginia, West Virginia Code, section 17.
Besides this, a considerable number of States, although not specifically defining lynchings and mob violence as crimes per se, have laws on their statute books under which lynchings can be punished, and a number of others, e.g., South Carolina, provided for criminal liability by the county to the legal representatives of the person lynched, and, of course, in all the States, there are laws against common-law crimes, under which successful prosecution could be made if public sentiment desired such prosecution.
And yet, since the enactment of these laws, specifically addressed against lynching and mob violence, in only one of these States, and in only one instance in that State, have the perpetrators of either lynching or mob violence been punished under those statutes or other- ! wise. In all the other States where the antilynching legislation exists, all the lynchers have gone unpunished, and in the State with the exceptional good record, in 7 out of 8 lynchings the lynchers have likewise gone unpunished.
Senator DIETERICH. May I interrupt you at this point?
Senator DIETERICH. You do not imply that is the condition in Illinois or the attitude of Illinois courts?
Mr. SPINGARN. No.
Senator DIETERICH. You imply that that is the attitude of the courts in some of the southern States?
Mr. SPINGARN. Yes, sir.
Senator DIETERICH. Did you ever have any complaint in relation to the attitude of Illinois courts?
Mr. SPINGARN. No, sir; none that I know of.
Obviously, these Staté antilynching laws have not resulted in punishment for the offenders.
How far have these State antilynching laws succeeded in prevention of lynchings?
Since the enactment of legislation directed against lynching and mob violence, Virginia and West Virginia have each had 1 lynching; Kansas has had 4 lynchings; Kentucky has had 6 lynchings; Alabama and Illinois have each had 8 lynchings; North Carolina has had 37 lynchings; and Georgia has had 402 lynchings. It is from some of these States that has come the loudest denunciation of any proposed Federal legislation and the most insistent demand that they be left to feel it was so bad that we had a lynching.
Let us now briefly examine how far these States have given the equal protection of the law to those in their actual custody. Time will not permit me to analyze all the lynchings of which records have been kept since 1889, but it will suffice to take the years 1930 to date, which may fairly be considered typical.
In February 1930, a Negro was taken by a mob from the sheriff at Ocilla, Ga., beaten, burned, and hanged.
In April 1930 a Negro was taken from the jail at Walhalla, S.C., and shot to death by a mob.
In May 1930 a Negro was burned to death by a mob in the courthouse at Sherman, Tex. In the same month a mob took a Negro from a guard of National Guardsmen at Chicasha, Okla, and lynched him.
In August 1930 two Negroes, boys 18 and 19 years old, were taken from the Marion County, Ind., jail and lynched. In the same month a Negro was taken by a mob from the jail at Tarboro, N.C., and lynched.
In September 1930 a Negro accused of murder was taken from :he McIntosh County, Ga., jail and lynched. In the same month two Negroes charged with robbery, while being taken by officers from De Kalb, Miss., to Scooba, Miss., were seized and lynched by
a mob. In the same month a Negro was taken from the sheriff in Thomasville, Ga., and lynched.
In October 1930 a mob took a Negro accused of murder from the jail at Bartow County, Ga., and hanged him.
In January 1931, a Negro was taken by a mob from the sheriff's office at Maryville, Mo., and burned to death by them. In the same month a white man accused of murder, was taken by a mob from the jail at Schafer, N.Dak., and hanged.
In April 1931, an 18-year old Negro boy was taken by a mob from the Union City, Tenn., jail and hanged.
In August 1931, a Negro was taken from the jail at Pointe-a-laHache, La., and shot to death by a mob.
In November 1931, a Negro accused of wounding a white man, was taken from the county convict camp, at Caledonia, Miss., and hanged by a mob.
In December 1931, a Negro was taken from a hospital cot at Salisbury, Md., where he was in charge of police officers, and lynched by a mob. In the same month, two Negroes were taken by a mob from the jail at Greenbrier County, W.Va., and lynched. In the same month a 19-year-old Negro, under sentence of death for murder, was taken from the Montgomery County, Tex., jail and shot to death by a mob.
In April 1932, a mob took a white man from the Cheyenne County, Kans., jail and hanged him.
In May 1932, another white man, accused of dynamiting a store, was taken from the Princeton, Ky., jail and hanged.
In September 1932, a Negro accused of shooting a sheriff was taken from the Crosett, Ark., jail and hanged.
In November 1932, a Negro was taken from the town marshal at Wisner, La., and lynched.
In February 1933, a Negro accused of the murder of the cashier of a bank was lynched in Ringgold, La., while in the custody of the sheriff.
In June 1933, two white men accused of murder were taken from the jail in Scott County, Tenn., and lynched.
In July 1933, a Negro accused of striking a white truck driver was taken from the Clinton County, S.C., jail and lynched.
In August 1933, two Negro boys, 17 and 18 years old, accused of murder, were taken from the authorities and lynched while being transferred from Tuscaloosa, Ala., to Birmingham for safekeeping.
In September 1933, a Negro was shot to death by a mob, which took him from the custody of a deputy sheriff at Opelousas, La.
In October 1933, a Negro was taken from the jail at Ninety-Six, S.C., and beaten to death. In the same month another Negro was taken from the jail at Princess Anne, Md., and hanged by a mob. In the same month another Negro was taken from the Richland, Ga.. jail and hanged.
In January 1934, a 20-year-old Negro, accused of slugging a miner, was forcibly removed from the jail in Perry County, Ky.. and lynched; and in the same month a Negro was lynched while being transferred from the county jail at Tampa, Fla., to the State authorities.