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In the second place, I think it would not be good policy to refuse to pass the bill because it may be similar to what was known as the “Force Bill.” This bill has nothing in common with the bills which were resented by the South. This is a bill to help that element in the South and in other States—North, South, East, and West, which are fighting against the prevalence of lynching and trying to stop it.
Assuming that we have a genuine desire to stop lynching, there are two questions which we may reasonably want to have answered before recommending or voting in favor of an antilynching bill in the form proposed by Senators Costigan and Wagner. First, is it sound policy to enact a Federal law against lynching? Second, is the proposed law constitutional ?
It ought to be clear to us now that mob violence in the form of lynching is a step toward the disintegration of civilization. Cancer has been described as the anarchic revolt of cells which break loose from their internal control and invade surrounding tissue. It is not far-fetched to call lynching a cancer of the body politic. The potentialities for disaster in such a habit of violent anarchy should be enough to make us want to forestall and control such antisocial violence, especially in view of what we have witnessed since August 1914, and in view of what we see in the headlines of current newspapers.
If the enactment of a Federal antilynching law meant that the Federal Government was going to have to act repressively against a unanimously apathetic or hostile State this policy might well be examined with some trepidation. Fortunately there is not a State of this country today where there are not active and in many instances effective individuals and agencies working against the lynching habit. These elements within the States, however, are obviously handicapped and sometimes paralyzed by a strong local antisocial sentiment which stalls the machinery of safety and justice and leaves the rest of the State no way of acting. Or the whole State machinery may be paralyzed, as recently in California. In such situations the obvious agency of law and order to the employed is one which will not be affected by the anarchistic sentiment of the locality or of the controlling State officials. The role of the Federal Government then may with all propriety be that of a guarantor, who is called into action only if officials of the State fail or refuse to act. This is the foundation, the purpose, and the tenor of this bill.
The fourteenth amendment of the Constitution as construed by the courts provides for and authorizes just such a guarantee. Section 1 of the fourteenth amendment provides : 1. Nor shall any State
deny to any person within its jurisdiction the equal protection of the laws.
And section 5 provides : 5. The Congress shall have power to enforce. by appropriate legislation, the provisions of this article.
We all know that a most characteristic feature of lynching is that the victim of the lynching mob does not get the same protection, either through prevention or through punishment, as does the victim of other forms of crime; 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 for this crime as they try to punish for other crimes; in other words, the victim of a lynching mob does not get the equal protection of the State's laws. This discrimination very frequently results from the failure to act or from the wrongful acts of sheriffs, wardens, and other administrative, executive, or judicial officials of the State or of its subdivisions.
There is no doubt that the provisions of the amendment apply to discriminatory laws. The Supreme Court and other Federal courts have made it equally clear that the amendment applies to discriminatory enforcement.
I take it you are familiar with the history of the fourteenth amendment. After the Civil War the amendment was passed at the instance of extremists who wanted to change the whole system of the Government and make it a Federal controlled Government and abolish State rights. There was litigation resulting in tremendously important Supreme Court decisions about the year 1873 and about the year 1884, since when there has been no litigation nor Supreme Court decision on the particular point that confronts us here, which is the constitutionality of a bill designed to protect the rights of citizens of States.
The former decisions of the Supreme Court in the Slaughter House cases and Civil Rights cases made it perfectly clear that the court would not allow the amendment to take the effect that has undoubtedly been intended of giving the Federal Government direct rights in actions against individuals in States. It has held that the amendment oculd only act against the States and not against the individuais, asserting that it was confined and would be confined in the future to protecting the rights of citizens of States guaranteed by the Constitution.
There were, however, several decisions which have opened up avenues down which this bill can travel constitutionally. One of those decision was Ex Parte Virginia (100 U.S.). A bill was passed by this Congress requiring that there be no discrimination in selecting juries as between white and colored races. A Virginia Judge was indicted under that law for discriminating, and he took the case to the Supreme Court of the United States, which held the law was good and the judge was amenable to the punishment of the law for discriminating in selecting a jury as between whites and colored. The court held that went to the officers of the State and did not relate to individuals.
The Supreme Court of the United States also said of discrimination, by exclusion of Negroes from jury panels, in the case of Tarrance v. Florida (188 U.S. 519).
Such an actual discrimination is as potential in creating a denial of equality of rights as a discrimination made by law.
In a Chinese case, Yick Wo v. Hopkins (118 U.S. 356), in California, when the anti-Chinese feeling was running strong, there was a discriminatory statute which was en forced only against the Chinese as to their laundries and not against the whites' laundries. The Supreme Court of the United States held that the law, while apparently fair and equal on its face, was intended to be and was in fact
applied in an unequal way and with a desire to favor one as against another. The court said:
Can a court be blind to what must necessarily be known to every intelligent person in the State? * * 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 ('onstitution 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 prohibiton of the Consttution.
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.
In United States v. Blackburn (Fed. Cas. No. 14603), the judge said:
By the equal protection of the laws, spoken or in the indictment, is meant that the ordinary means and appliances which the law has provided shall be used 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 efficers 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 depriving them of the equal protection of the law.
And in 1912, in Home Telephone & Telegraph ('o. v. Los Angeles (2:27 U.S. 278), Mr. Chief Justice White said, at pages 286, 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 m-wer which exists to enforce the guarantees of the fourteenth amendment.
The bill before you, the Costigan-Wagner bill (S. 1978), constitutes appropriate legislation to discourage lynching and to assure to the victims, of whatever race, creed, or color full and equal protection of the laws of the State. The prorisions of the act are confined to the subject of lynching by the title, which might perhaps be better worded, “ To prevent and punish lynching by assuring to persons within the jurisdiction of every State the equal protection of the laws."
Summarized, the bill provides:
That if a State (acting, of course, through its officials) fails, neglects, or refuses to provide and maintain protection to the life or person of any individual against a mob or riotous assemblage, the State shall be deemed to have denied the equal protection of its laws to such person.
That any State officer or employee, having the duty of protection of the life or person of such an individual, who fails or refuses to make all diligent efforts to protect such an individual, or to arrest or prosecute members of a mob, is guilty of a felony punishable by fine or imprisonment.
That any State officer or employee who conspires to harm or kill his prisoner or to let him be taken by a mob, shall with his confederates be guilty of a felony punishable by a fine or imprisonment.
That the Federal court of the district shall have jurisdiction over the lynchers on a showing that the State officers have failed to arrest or prosecute, or that the jurors are so biased that there is no probability of conviction. The failure to arrest or indict any one within 30 days, or to prosecute diligently, is prima facie evidence giving Federal jurisdiction.
That the county where the person is lynched shall forfeit $10,000, recoverable for the use of the family of the victim.
That the lynching of a citizen of a foreign country constitutes a Federal crime.
It is obvious that these provisions are appropriate to employ the Federal guaranty of equal protection in such a way as to discourage lynchings, to prevent their recurrence, and to punish those responsible for them. That the courts take this view of such provisions is shown by the opinion of the Supreme Court of Illinois in People v. Nellis (249 III. 12), affirming a judgment ousting a sheriff whose prisoners, i Negro and 1 white man, were taken from his custody and killed by a mob, and following which the governor removed him under the Illinois act of 1905 entitled "An act to suppress mob violence", the court said, at page 17 :
The first section defines the meaning of the term “ serious injury" to persons and property, as used in the act. The third section makes the persons who compose a mob with intent to inflict damage or injury upon the person or property of an individual charged with crime guilty of a misdemeanor and subject to a fine and imprisonment in the county jail. The fourth section makes it a felony for persons composing a mob to by violence inflict material damage upon the property or serious injury upon the person of another under pretense of exercising correctional powers over such person, and makes the penalty for said offense imprisonment in the penitentiary not exceeding 5 years. The last clause of said section provides that any person suffering material damage to property or injury to person by a mob shall have a right of act on against the county or city in which the injury is inflicted for such damages as he may sustain, to an amount not exceeding $5,000. The fifth section gives a right of action to the surviving spouse, lineal he'rs or adopted children of a person who shall suffer death by lynching at the hands of a mob, against the county or city for damages in a sum not exceeding $5,000.
The sixth section provided that a lynching shoull be prima farie evidence of the sheriff's failure to do his duty upon which the Governor must remove him, and provided that he might be reinstated if he could show that "he had done all in his power to protect the life of such prisoner and perform the duties required of him by existing laws respecting the protection of prisoners.
In finding that the provisions of the act effectuated the object expressed in its title, the court said, at page 19:
It is, we think, too clear for argument that those provisions of said act which provide that persons engaging in mob violence shall be guilty of an felony and subject to imprisonment in the penitentiary will tend to prevent men from joining mobs when assembling and will tend to the suppression of mob violence. and it is, we think, equally clear that the imposing of a liability for damages upon the county or city in favor of the victim of a mob whenever mobs are permitted to assemble, or, in case of his death, in favor of his widow or heirs or adopted children, will cause the taxpayers of such county or city to discourage the assembling of mobs within such municipalities and will cause all law-abiding men residing in such communities to condemn and denounce mob violence, the result of which must be to create respect for the law and its enforcement and to discourage the assembling of mobs. The fact that the sheriffs, of the sereral counties of the State are subject to removal from office in a summary mamner for neglect of duty and a failure on their part to protect prisoners in their custody from being taken from their custo'ly and hanged by a mob will certainly tend to make the sheriffs of the several counties of the State more vigilant and cause them to make greater effort to protect persons in their custody than they would be were they not subject to removal from office and more earnest and courageous in dispersing riotous assembles, which must have the wirect effect to suppress meb violence. We are therefore impressed with the fact that each provision of the act in question will fairly tend to effectuate the object expressed in the title to said act. riz, the suppression of mob violence. While it is true that the title of the act is quite general, that is no objection to the title, as the more general the title the greater the number of particular or subordinate subjects that may be legitimately included within the act (Rouse v. Thompson. 225 III. 522).
I respectfully urge that it is vitally important to stop lynching: that it is sound policy to enact a Federal law in performance of a Federal guaranty of equal protection of the laws to those individuals who are or may be subject to lynching in any of the States; that the Costigan-Wagner bill is well devised to fulfill this guaranty and help do away with lynching; that the bill is appropriate legislation within the provisions of the fourteenth amendment and should he held constitutional by the Supreme Court.
I need harully urge the importance of having Congress set an example to the country and furnish leadership of those responsible elements which in the various States are striving under their handicaps to abolish lynching. The passage of this bill by this Congress will, I submit, do more than any other one thing to strengthen the hands of these responsible elements and at last remove the opprobrium of they recurrent lynchings which our country now bears in the eyes of the world.
It need not be argued before this evamittee that the lynchers, the victims. the others who have failed to prevent it or conspired with those committing the act, are all treated in the same was under the laws of the State as are those officers or individuals in the case of other crimes that has been made ist abun lantls clear recently lir tre raition of both church and state in favor of lynehing in the California cand
The law wich is proq* provides that the State, if it fails to give equal puteri. in all love themed to have denimi sueh equal protection: that the State officers who failet in their duty to prevent the synching are guilty of a felony; that a State officer who conpirs with a mob is guilty of a felony; and that the Federal court of the district hall hare jurisiction over the lynchers themselves if it be shown that the State officers have failed to prosecute. It