Mr. GoFF. I very much invite these interruptions. They suggest the questions to which you gentlemen desire me to address myself. Mr. REAVIS. The only prohibition in the fourteenth amendment is a prohibition against a State doing a certain thing, and acting in the only way, as Justice Brewer says a State may act, through its executive, legislative, or judicial branches. Now, an individual could not bind a State, and the act of an individual would not justify Congress in passing a law with reference to an alleged denial on the part of a State, would it? .

Mr. GoFF. You have raised a question which occurred to me when I first read this bill. I was then inclined to answer in the negative, but the more I have considered this bill in the light of the decisions, reflecting as they do the power conferred by the people on the Federal Government, the more I feel your question should be answered in the affirmative. By implication, when a State has been guilty of violating any of the provisions of the amendment, Congress may provide for their enforcement.

Mr. BOIES. Would not the proposition depend on whether a man was acting in an official capacity or in a personal capacity?

Mr. GoFF. I think there can be no doubt that if a pe: son were acting in an official capacity Congress would have the right, and would find it to be its duty, to legislate in such a matter. That question I do not view as open to doubt.

Mr. REAVIS. In connection with the question I asked you, several sections of the bill trouble me a good deal. I want to call your particular attention to section 11, which reads:

That in the event any person so put to death who shall have been taken from a State or municipal officer in one county by a mob, or riotous assemblage of three or more persons, shall have been taken in one county and transported to another before such killing shall have taken place, each and every county through which such murdered person shall have been transported during the time intervening between his capture by such mob or riotous assemblage shall be jointly and severally liable to the forfeiture herein above provided.

The thought I have in mind is this: The State is doing everything in its power to protect this man, to give him equal protection of the laws, yet a mob of individuals, dissassociated from the idea of a State. overcomes the efforts of the State and by seperior force takes this man from the custody of the State and lynches him. Would you think, in such event, that Congress has any right to legislate under the fourteenth amendment? The State is not only not denying him the equal protection of the laws but is doing everything in its power to give him the equal protection of the laws.

Mr. GOFF. That, with all due respect, is the same question, is it not? Mr. REAVIS. It is; but I wanted to call your attention to a specific matter that is in the bill.

Mr. GOFF. I am inclined to say that Congress has, and, with your permission, I am going to tell you why. I am now referring to the remarks of the Supreme Court, speaking through Mr. Chief Justice Waite, in the case of the United States against Cruikshank. (92 U. S., p. 542.) The court there said, addressing himself to a very exhaustive consideration of the fourteenth amendment:

The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property without due process of law.

m

And from denying to any person within its jurisdiction the whole protection of the laws.

But this adds nothing to the rights of one citizen as against another. It simply furnishes an additional guaranty against any encroachment by the States upon the fundamental rights which belong to every citizen as a member of society.

The duty of protecting all of its citizens in the enjoyment of rights was originally assumed by the States, and it still remains there. Will you please note this:

The only obligation resting upon the United States is to see that the States do not deny the right.

My conclusion is this: Must the Congress of this country sit supinely by when it knows that a State, either affirmatively or negatively, is denying that right? If the State omits to give or withholds protection through motives of indifference or inability, is the guaranty performed and the duty of the Federal Government discharged? In a word, is the fourteenth amendment meaningless because of State negativity? I hope not, and I think not. The Congress of the United States clearly is charged under the Constitution, as interpreted by the Supreme Court, with the duty of seeing that the States do not neglect this right. Then, if the Congress of the United States decides that the States have, by omission, neglect, incapacity, or local prejudice, if you please, failed to insure and secure to every citizen within those States the full protection of the laws, and the right to life, liberty, and property, then does not the obligation arise to protect these rights? Is it an answer to say that the individual invasion of individual rights is not the subject of the amendment

Mr. REAVIS (interposing). May I ask you a question there?
Mr. GOFF. Yes.

Mr. REAVIS. There is nothing in the fourteenth amendment, as I read it, that constitutes an insurance on the part of a State to the equal protection of the laws. The fourteenth amendment prohibits the denial of equal protection of the laws. Now, would you say that the inability of a State to protect an individual constitutes a denial on the part of that State?

Mr. GoFF. I would say yes; and for this reason: We are all familiar with that state of affairs where if the Congress of the United States-and it has recently decided it-concludes as a matter of fact that a republican form of government does not exist in a State because the State has not the means or the instrumentalities by which such forms of government are recognized and protected, that it, the Congress of the United States, has the right to go into that State and see that a republican form of government is maintained and preserved. It was done only recently, as you know, in the State of West Virginia, and a committee of the Senate of the United States, merely upon a determination of the legislative fact that a republican form of government did not exist there, invaded the State to see whether the State was properly enforcing its laws under its constitution and the Constitution of the United States.

Mr. REAVIS. But that committee did nothing.

Mr. GOFF. Well, whether they accomplished anything was, of course, a matter that rested initially upon the infirmity of the facts

which the committee discovered after it entered the State, but the fact that the committee went into the State illustrates my proposition that the Congress of the United States determined, as it had the right to do, that it had the right to go into that State if it were satisfied that the State was not maintaining a republican form of government, which the Constitution guarantees to the citizens of all the States.

Now, to come back to your proposition, and I want to meet that issue in a logical way. I say that if a State omits affirmatively to legislate upon such questions it has denied this protection by not taking affirmative action; if it takes affirmative action and does not enforce that action, or if it says it will take no action because, within the judgment of the State, no action along those lines should be taken, then I say the Federal Government can say to that particular State, "You have denied negatively," "You have failed to give," "You have defaulted," if I may so phrase it, "to the citizens of these States the protection that the Constitution of the United States, as interpreted by the Supreme Court, says they are entitled to receive." Now, I contend that under the general police power, the Federal Government may go in, and, side by side with the States, as it does in bankruptcy-aid the States in securing the protection which for any reason the local governments can not give.

The Federal Government was given the power to curb the States in these particulars-and the States reserved the correlative right to so "police" its citizens that in maintaining order it would not deprive any person of life, liberty, or property. And if it fails to preserve these rights-and the Congress concludes, that such rights are denied the people and that they are deprived of due process of lawno matter the cause then are we to be told that these guaranties can not be enforced by appropriate legislation.

Mr. REAVIS. I concede the proposition that if any State should law against homicide, with the statement that it should apply only when a white man was killed, that there would be a denial of the equal protection of the laws.

Mr. GOFF. It would be class legislation.

Mr. REAVIS. No; it would be worse than class legislation, because it is the denial of the full protection of the laws to Negroes. We will presume, of course, that all States have laws against homicide. Now, you might have in your mind the thought that it would be necessary or advisable for the States to pass some other law in addition to that, but because a law against homicide is an equal protection to the lives of all individuals, both black and white, I might have another conclusion regarding the necessity for additional legislation.

Now, do you think Congress would be justified under the fourteenth amendment in passing a law such as the bill now before this committee, in the absence of further legislation that different individuals might agree upon or might differ upon? The failure to pass laws would constitute a denial. I admit that. Also protecting only one class of citizens and not another would constitute a denial. But when they have passed laws, all of them constituting homicide a capital offense, protecting blacks and whites equally, do you think the mere fact that we might disagree as to whether

further legislation was necessary to protect the blacks would constitute such a denial as would justify Congress in legislating? Mr. BOIES. Will you let me ask you a question?

Mr. REAVIS. Yes.

Mr. BOIES. Suppose in some particular State there was a murder every day for five years and no prosecutions, do you think the Federal Government could step in and remedy that condition?

Mr. REAVIS. There might be such failure on the part of the lawenforcing officers of the State as would call for action on the part of Congress, but that is not this case.

Mr. GoFF. That brings us back again to my original premise. It is a legislative fact, and I say that when the legislative department of our Government has determined the fact, the courts uniformly decline to go into the justification of the legislative motive, unless it is so very absurd that upon its face it would be in excess of authority. If the Congress of the United States, in view of the fact that a State has a law punishing murder, says there should be a Federal law punishing murder in order that there may be conceded to the people of that State an equal, vigorous, and speedy enforcement of the law and the protection of their lives and their property, then Congress would have the right, in the exercise of the correlative duty of protection, to do so. If the State is helpless for any reason to secure these rights-and the people are deprived of their enjoyment-is Congress justified in condoning the deprivation merely because of the absence of some formal action by the State?

Mr. REAVIS. Would you carry that further, to burglary, larceny, and assault and battery?

Mr. GoFF. Of course, the principle would carry us there. It would carry us there, not only under the broad, general terms of the Federal police power, but it would carry us there under the general power to maintain peace and to insure that peace which is known as the peace of the United States. If a State declined to maintain order under the law, could Congress justify a refusal to protect and enforce such rights as were violated if these rights were dependent on the Constitution of the United States?

Mr. REAVIS. Then, I gather from what you say, and I want to understand you, that under the fourteenth amendment Congress would have the right to enact legislation under the police power covering the crimes of the homicide, larceny, burglary, and embezzlement, which are purely State offenses.

Mr. GoFF. Yes; and it does so now-not alone in matters falling within its exclusive jurisdiction, but in those instances where the jurisdiction is concurrent.

Mr. MONTAGUE. In what clause or clauses of the Constitution do you find any authorization for a general police power on the part of the Federal Government?

Mr. GOFF. Under the fourteenth amendment, which I have just been discussing, and under the general interpretations which the Supreme Court has given to the Federal jurisdiction as exercised under these different provisions.

Mr. MONTAGUE. What case would you give that the United States Supreme Court has interpreted?

Mr. GOFF. I do not know whether you were in the room when I was reading the original white slave and other decisions.

Mr. MONTAGUE. Do you put that upon the police power?

Mr. GoFF. I said that in that case

Mr. MONTAGUE (interposing). Was it not distinctly stated to be the exercise of Federal power under the commerce clause of the Constitution?

Mr. GOFF. There is no question about that.

Mr. MONTAGUE. And not the police power. That was under the commerce clause.

Mr. GOFF. Yes; but the Supreme Court of the United States in that and other cases has frequently said that there was a police power of the United States as well as the police power of the several States. Now, if you should ask me whether that remark was obiter in the white-slave cases I would say yes, but the court has frequently built up its decisions on the rock of obiter.

Mr. WALSH. Section 5 of the fourteenth amendment says:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Mr. GOFF. Yes, sir.

The fifth section providing that—‍

Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

has received special consideration in Logan v. United States (144 U. S., 263, 293), where Mr. Justice Gray stated its meaning to be:

Every right created by arising under or dependent upon the Constitution of the United States may be protected and enforced by Congress by such means and in such manner as Congress, in the exercise of the correlative duty of protection, or of the legislative powers conferred upon it by the Constitution, may, in its discretion, deem most eligible and best adapted to attain its object.

There is a limitation, however, in the amendment itself upon the power of Congress. The clause of the amendment under consideration provides that Congress may enforce the provisions of the amendment by "appropriate legislation." and the right to judge what is appropriate legislation rests with the lawmaking body of the Government-that is, with Congress.

Mr. Justice Lamar, in United States v. Sanges, said:

The provision of the fourteenth amendment authorizing Congress to enforce its guaranties by legislation means such legislation as is necessary to control and counteract State abridgment.

The Supreme Court of the United States has held that Congress would have no right to provide for the enforcement of the provisions of this amendment in the following cases:

When the State has been guilty of no violation of its provisions; when it has not made or enforced any law abridging the privileges or immunities of citizens of the United States; when no one of its departments has deprived any person of life, liberty, or property without due process of law or denied to any person within its jurisdiction the equal protection of the laws; when, on the contrary, the laws of the State as enacted by its legislative and construed by its judicial and administered by its executive departments recognize