repealed by the legislature; such parts only excepted as are repugnant to the rights and liberties contained in this constitution.

MICHIGAN CONSTITUTION, ARTICLE 3, SECTION 7

Common law and statutes, continuance. SEC. 7. The common law and the statute laws now in force, not repugnant to this constitution, shall remain in force until they expire by their own limitations, or are changed, amended or repealed.

MISSISSIPPI CODE ANNOTATED

§ 2560. General provisions-common-law offenses recognized.

Every offense not provided for by the statutes of this state shall be indictable as theretofore at common law.

NEW MEXICO STATUTES

40A-1-3. Construction of Criminal Code.-In criminal cases where no provision of this code is applicable, the common law, as recognized by the United States and the several states of the Union, shall govern.

NORTH CAROLINA CODE ANNOTATED

§ 4-1. Common law declared to be in force. All such parts of the common law as were heretofore in force and use within this State, or so much of the common law as were heretofore in force and use within this State, or so much of the common law as is not destructive of, or repugnant to, or inconsistent with, the freedom and independence of this State and the form of government therein established, and which has not been otherwise provided for in while or in part, not abrogated, repealed, or become obsolete, are hereby declared to be in full force within this State. (1715, c. 5, ss. 2, 3, P.R.; 1778, c. 133, P. R.; R. C., c. 22; Code, s. 641; Rev., s. 932; C. S., s. 970.)

TENNESSEE CONSTITUTION, ARTICLE 11, SECTION 1

Section 1. Existing laws not affected by this Constitution.-All laws and ordinances now in force and use in this State, not inconsistent with this Constitution, shall continue in force and use until they shall expire be altered or repealed by the Legislature; but ordinances contined in any former Constitution or schedule thereto are hereby abrogated.

WISCONSIN STATUTES ANNOTATED

939.10 Common-law crimes abolished; common-law rules preserved

Common-law crimes are abolished. The common-law rules of criminal law not in conflict with the criminal code are preserved.

APPENDIX B

HOUSE REPORT 472, 90TH CONGRESS-PENALTIES FOR INCITING RIOTS

The Committee on the Judiciary, to whom was referred the bill (H.R. 421) to amend title 18 of the United States Code to prohibit travel or use of any facility in interstate or foreign commerce with intent to incite a riot or other violent civil disturbance, and for other purposes, having considered the same, report favorably thereon with an amendment and recommend that the bill do pass.

The amendment as follows:

Strike all after the enacting clause and insert in lieu thereof the following: “That (a) title 18 of the United States Code is amended by inserting, immediately after chapter 101 thereof, the following new chapter:

"§ 2101. Riots

''Chapter 102.-RIOTS

"Whoever travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to

'(a) incite a riot, or to organize, promote, encourage, or carry on a riot, or to commit any act of violence in furtherance of a riot, or to aid and abet any

person in inciting a riot or committing any act of violence in furtherance of a riot, and

(b) thereafter performs or attempts to perform any overt act specified in paragraph (a),

shall be fined not more than $10,000 or imprisoned not more than five years, or both.

"For purposes of this chapter:

'(a) A person travels in interstate or foreign commerce when he travels from one State to another, or from a foreign country to a State; and, as used in this chapter, the term "State" includes the District of Columbia, the Commonwealth of Puerto Rico, and any possession or territory of the United States.

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(b) A riot is a public disturbance, involving acts of violence by assemblages of three or more persons, which poses an immediate danger of damage or injury to property or persons.

"(c) Inciting a riot shall mean urging or instigating other persons to riot, but shall not mean the mere advocacy of ideas or the mere expression of belief. The phrases "to incite a riot" and "incites a riot" shall be construed in accordance with this definition.

"Nothing contained in this chapter shall be construed as indicating an intent on the part of Congress to occupy the field in which any provisions of the chapter operate to the exclusion of State or local laws on the same subject matter, nor shall any provision of this chapter be construed to invalidate any provision of State law unless such provision is inconsistent with any of the purposes of this chapter or any provision thereof.'

(b) The table of contents to "PART I-CRIMES" of title 18, United States Code, is amended by inserting after

The purpose of the amendment is to revise the language of the original measure in order to clarify and make more definite the scope of the proposed statute.

PURPOSE OF THE LEGISLATION

The purpose of the bill, as amended, is to add a new chapter 102 entitled "Riots" to title 18, United States Code, to penalize interstate travel or the use of interstate facilities, including the mail, to incite, organize, or promote a riot. It provides a penalty of a fine of not more than $10,000 or imprisonment of not more than 5 years.

STATEMENT

The committee shares the deep concern widely expressed over the outbreak of riots and other violent disturbances in a number of cities in various sections of the Nation. While the immediate victims of street terror are the innocent bystanders, law-abiding citizens, and neutral shopkeepers, in a larger sense all America is victimized by this lawlessness.

During the 89th Congress the subject matter of the bill herein reported was adopted by the House of Representatives in the form of an amendment to H.R. 14765, the Civil Rights Act of 1966. In the 90th Congress approximately 70 Members of the House have introduced bills to establish Federal penalties for traveling in interstate commerce to incite riots and other civil disorders.

H.R. 421, as amended, imposes a Federal penalty of up to $10,000 fine or 5 years' imprisonment, or both, on anyone who travels across State lines or uses the mail or other interstate facilities with intent to incite, organize, promote encourage, or carry on a riot and thereafter engages in overt acts in furtherance of this intent. This legislation represents the exercise of Federal criminal power under authority based on the commerce clause of the Constitution. There are ample precedents for proscribing certain types of conduct when the facilities of interstate commerce are used.

Although each of the 50 States and the District of Columbia by statute punish affrays, disturbances of the peace, and riots, the committee is persuaded that a need exists for the exercise of Federal jurisdiction against those who agitate and incite such violence by the use of facilities in interstate commerce. The committee intends that State jurisdiction in this matter should not be displaced. The intent of the legislation is to supplement, not supplant, local law enforcement. Generally, the most immediate and effective means of riot control, riot prevention, and the punishment of rioters rest with State and local police. However, by assuring Federal investigative and prosecutive jurisdiction over “out-of-State" inciters, it may be expected that State and local authorities will be substantially assisted in keeping the peace and protecting the public safety.

The bill, as amended, will not prohibit legitimate activities by groups or individuals who travel in interstate commerce or use its facilities to plan and participate in public assemblies or other lawful public demonstrations. Obviously, nothing in the bill circumscribes or hinders the objectives of organized labor in a bona fide labor dispute in urging strikes.

The bill is aimed at those who travel from State to State or who use the mail or other facilities of interstate commerce with intent to incite street violence and rioting and who thereby threaten the domestic peace and tranquility. The committee believes that the enactment of this legislation to deter and punish those who travel interstate to incite such violence is salutary.

ANALYSIS OF THE BILL

The bill would amend title 18, United States Code, by adding a new chapter 102 entitled "Riots," and three new sections: § 2101. Riots; § 2102. Definitions; and § 2103. Preemption.

§ 2101 makes it a felony punishable by fine of not more than $10,000 or imprisonment for not more than 5 years, or both, to travel in interstate or foreign commerce, or use any facility in interstate or foreign commerce, including the mail, with the intent to incite a riot or to organize, promote, encourage, or carry on a riot, or to commit any act of violence in furtherance of a riot, or to aid or abet any person in organizing a riot or committing any act of violence in furtherance of a riot; and thereafter attempt to perform or perform any of the enumerated acts. § 2102.-Subsection (a) defines "interstate or foreign commerce" so as to delineate the scope of the statute. Subsection (b) defines the term "riot" as a public disturbance, involving acts of violence by assemblages of three or more persons, which poses an immediate danger of damage or injury to property or persons. Subsection (c) defines "inciting a riot" to mean urging or instigating other persons to riot. The definition specifically recognizes that expression protected by the first amendment-the mere advocacy of ideas and the mere expression of belief-is not included within the scope of the act.

§ 2103 makes clear that it is not the intent of the statute to preempt State law.

CHANGES IN EXISTING LAW

In compliance with clause 3 of rule XIII of the House of Representatives, there is printed below in roman existing law in which no change is proposed by the bill as reported. Matter proposed to be stricken by the bill as reported is enclosed in black brackets. New language proposed by the bill as reported is printed in italic.

§ 2101. Riots

Where travels in interstate or foreign commerce or uses any facility in interstate or foreign commerce, including the mail, with intent to

(a) incite a riot, or to organize, promote, encourage, or carry on a riot, or to commit any act of violence in furtherance of a riot, or to aid and abet any person in inciting a riot or committing any act of violence in furtherance of a riot, and (b) thereafter performs or attempts to perform any overt act specified in paragraph (a), shall be fined not more than $10,000 or imprisoned not more than five years, or both. § 2102. Definitions

For purposes of this chapter:

(a) A person travels in interstate or foreign commerce when he travels from one State to another, or from a foreign country to a State; and, as used in this chapter, the term "State" includes the District of Columbia, the Commonwealth of Puerto Rico, and any possession or territory of the United States.

(b) A riot is a public disturbance, involving acts of violence by assemblages of three or more persons, which poses an immediate danger of damage or injury to property or persons.

(c) Inciting a riot shall mean urging or instigating other persons to riot, but shall not mean the mere advocacy of ideas or the mere expression of belief. The phrases "to incite a riot” and “incites a riot” shall be construed in accordance with this definition. § 2103. Preemption

Nothing contained in this chapter shall be construed as indicating an intent on the part of Congress to occupy the field in which any provisions of the chapter operate to the exclusion of State or local laws on the same subject matter, nor shall any provision of this chapter be construed to invalidate any provision of State law unless such provision is inconsistent with any of the purposes of this chapter or any provision thereof.

MINORITY VIEWS OF HON. DON EDWARDS, HON. JOHN CONYERS, JR., AND HON. HERBERT TENZER ON H.R. 421

The undersigned do not concur in the action taken by our committee colleagues. We oppose H.R. 421, as amended.

At the outset we should make clear that we oppose looting, vandalism, arson, and bombing. We oppose and condemn all forms of violence and terror and all assaults in disregard of normal processes of law and order. We are all victims of those who have the arrogance to place themselves above the standards of civilized society and to ignore the law.

There must be an end to riots.

The response of our committee colleagues has been to propose enactment of a Federal antiriot criminal statute. As we understand the proposed legislation, it would penalize interstate travel or the use of the mails, telephone or other interstate facilities, to "incite ***, organize, promote, encourage, or carry on a riot."

We urge the House to carefully reexamine the language and scope of the proposed legislation. The measure is apparently patterned on the Anti-Racketeering Act which deals with unlawful business enterprises. Terms such as "encourage," "promote,' or "carry on" which have an ascertainable meaning when used with respect to business transactions or enterprises, do not necessarily have the sameclarity or significance when used in connection with incitement to riot. We believe that the use of such vague and uncertain language in defining the crime sought to be punished in H.R. 421, invalidates the entire measure under the first and fifth amendments to the Constitution.

The impression is conveyed that this legislation is a panacea for riots. It is not. It is also undesirable to suggest that the Federal Government is about to undertake a major role for the prevention, control, and punishment of rioters. It cannot; nor should it. These functions are primarily performed by State and local law enforcement agencies. These functions, traditionally, are within the sphere of the States police power. There are persuasive reasons, in our view, to resist the encroachment of Federal power in this area.

Such enroachment would be premature. State and local law-enforcement officials generally should be commended for the manner in which riots have been handled to date. Their response has been prompt and vigorous and they have arrested,

prosecuted, and convicted those persons who have resorted to violence. State and focal governments appear to have enacted adequate statutes to protect their citizens against this type of civil disorder. However, if existing penalties should prove insufficient or it it is felt that the statutes fail to prohibit a broad enough range of conduct, the answer as of now should be appropriate amendment of the State statute or the municipal ordinance. While we all abhor those who provoke, incite, or encourage others to commit street violence, we should be slow to turn to or request Federal intervention before the inadequacies or helplessness of State or local law enforcement are established.

We restate our belief that the bill is constitutionally unsound and represents premature Federal intervention. We urge that H. R. 421 be voted down.

DON EDWARDS.
JOHN CONYERS, Jr.
HERBERT TENZER.

ADDITIONAL VIEWS OF MR. McCULLOCH, MR. CAHILL, MR. MAC GREGOR, MR. MATHIAS OF MARYLAND, MR. MCCLORY, MR. SMITH, MR. MESKILL, MR. SANDMAN, AND MR. BIESTER

This legislation as reported out of subcommittee would have not only prescribed traveling and the use of facilities in interstate commerce with intent to incite riots but would have also protected and safeguarded the exercise of certain enumerated civil rights which Congress has already recognized. Under impending threat of a jurisdictional ouster by the Rules Committee, which dictated the prompt production of an "antiriot" bill without alloy, this committee has chosen to sever the two parts of the original bill. This, we report two bills simultaneously— an antiriot bill, H.R. 421, and a civil rights bill, H.R. 2516.

These views are submitted because of the bifurcation of this vital legislation. We deeply regret this course. The two parts are inextricably interrelated. The amalgamation of the two parts would have presented a balanced and unified Federal view on what is protected and what is forbidden civil rights conduct. The function of law is to guide the conduct of the citizenry. Thus it is essential that the law speak with one voice in outlining what is permitted and encouraged on the one hand and what is forbidden on the other.

The original bill would have indicated that while the law encourages the unfettered exercise of civil rights in the areas of public transportation, public accommodations, jury service, and government programs and facilities, the answer to the violations of those rights that might occur is to be found in courts of law and not by rioting in the streets. Each of the present bills loses something when it stands alone. We must not overlook that we do not have two unrelated problem areas in the civil rights movement. Rather we have one focus-what is proper conduct for those seeking to extinguish "discrimination on account of race, color, religion or national origin." Nor should we overlook that those who by force, violence, and threats interfere with the equal enjoyment of civil rights and those who incite riots and lootings share a common guilt. For both resort to tactics repugnant to our lawful traditions and reprehensible to our people.

Although it is unfortunate that these companion provisions have been wrenched apart, we support each in its separated form. We support H. R. 421 because riots like those that recently occurred in Cleveland, Cincinnati, Dayton, Boston, Buffalo, and elsewhere must be stopped. Countless law-abiding citizens have been injured in their person and in their property. Many of these summertime race riots have been traced back to roving troublemakers who purposely travel about this Nation to incite riots. The need for this legislation shouts for itself. No one doubts our power to act. Seldom is the people's voice as clear as it is on this legislation. Hence, it is imperative that we rid interstate commerce of these agitators and unlawful troublemakers.

We support H. R. 2516 since it makes effective and enforceable civil rights legislation that has been with us for a century. As the chairman's views (which the committee adopts) point out, H. R. 2516 would legitimately dispense with the burdensome requirement of proving that the defendant specifically acted with the intention of depriving another of his 14th amendment rights. This requirement has made present laws a dead letter. But since the language of H. R. 2516 is clear and specific, the requirement of "specific intent" is not necessary to save the bill from the shoals of unconstitutionality.