Mr. BARRY. I view this particular situation as an instance where the Federal Government has taken jurisdiction in one class of homicide cases.

Senator FERGUSON. It may not be homicide. It may be injury.

Mr. BARRY. Possibly felonious assault or homicide; put it that way. By the same token, if we have misconstrued these constitutional provisions over all of these years, they could take jurisdiction, I would say, in rape, assault with intent to commit murder, robbery, or other cases, because each and every one of them involve the constitutional guaranty.

Senator REVERCOMB. What do you think of this proposition, Mr. Barry. Here is a crime that is generally recognized by every one as a crime. You say the people of Tennessee abhor it. I think the majority of people do in every State. If the States fail in reaching that crime and punishing it, the Federal Government then has the right, has it not, to reach out and use its powers to stop that crime?

Mr. BARRY. I have never found anything in the Constitution which would authorize the Federal Government, except under its delegated powers, such as the commerce clause and other sections of it, where the power is delegated, to usurp the prerogatives of a sovereign State. If it can administer one criminal statute, it can administer all criminal statutes, because each and all of them involve rights guaranteed under the Federal Constitution.

Senator REVERCOMB. Well, we know that both the State and the Federal Government have declared acts to be crimes. One may be punished in either one jurisdiction or the other in cases of that kind.

Mr. BARRY. Take the case of narcotics and liquor and things of that kind. They are under the revenue laws. Take the Automobile Transportation Act, the Mann Act, and various and sundry others. They are under the commerce clause, having to do with crossing State lines.

Senator FERGUSON. Is that not identical with putting this under the fourteenth amendment clause? Instead of it being the commerce clause, it is denying to a person equal protection of the law, or due process of law. Is it not identical with that kind of a case?

Mr. BARRY. I would respectfully make this suggestion: that we are dealing with the fourteenth amendment, which is a prohibition against the States, and under an amendment to the Constitution dealing with prohibition against the States, we are dealing with individual right.

Senator FERGUSON. For instance, a State may deny the right of a person to impair the obligation of contract.

Mr. BARRY. That is under the Federal Constitution.

Senator FERGUSON. That is under the Federal Constitution, too, and it applies to the State.

Mr. BARRY. But in each case you have a constitutional provision which covers that and is directed at that particular thing, within which that actually comes. I am trying to make the distinction between a prohibition against a State and a prohibition against individuals, over whom the State may or may not have control.

Senator FERGUSON. Do you see any distinction between holding the police officer, the sheriff, and the person who actually commits the crime of lynching?

Mr. BARRY. It just occurs to me that as a matter of jurisdiction within the bounds of those States, there is no constitutional authority upon which to base it, except, putting it charitably, by giving a broader interpretation to some of the provisions of the Constitution. Senator FERGUSON. You say it is just as unconstitutional to try to hold the police officer as it is to hold the individual? You do not see any distinction?

Mr. BARRY. No, sir.

Senator FERGUSON. In this one letter of the Attorney General, he draws a distinction. He says it is doubtful that you can hold the individual, but there is no doubt about holding the police officer criminally liable. You do not see any distinction, as he does?

Mr. BARRY. I don't see any material distinction there; but the distinction might be drawn, of course. When you get down to some of the refinements of constitutional law, you might do that. But I frankly do not see any basic distinction in the case of granting jurisidction within the bounds of a State for an injury committed by one private individual upon another private individual. Of course, you can do it by putting it upon the assumption of nonfeasance, and by circuitous reasoning you might be able to do that.

Senator FERGUSON. Are there any questions?

Senator REVERCOMB. No questions.

Senator EASTLAND. I have none.

Mr. BARRY. I want to apologize to the committee for taking up so much time.

Senator FERGUSON. It has been very enlightening.

Senator REVERCOMB. Mr. Chairman, my committee, Public Works, will meet tomorrow morning, so you may proceed without me.

Senator FERGUSON. This will all be written up, Senator, so you will have access to it.

We will now recess until 10 o'clock tomorrow morning.

(Thereupon, at 11:50 a. m., the committee recessed, to reconvene at 10 a. m. Tuesday, January 20, 1948.)

CRIME OF LYNCHING

TUESDAY, JANUARY 20, 1948

UNITED STATES SENATE,

SUBCOMMITTEE OF THE COMMITTEE ON THE JUDICIARY,

Washington, D. C. The subcommittee met at 10 a. m., pursuant to recess, in room 424, Senate Office Building, Senator Homer Ferguson (chairman of the subcommittee) presiding.

Present: Senators Ferguson and Eastland.

Present also: Senator Morse and Robert Barnes Young, committee staff.

Senator FERGUSON. The committee will be in order.

You may proceed, Senator Morse, with your statement.

STATEMENT OF HON. WAYNE MORSE, A UNITED STATES SENATOR FROM THE STATE OF OREGON

Senator MORSE. Mr. Chairman, I want to express my regrets to the committee because I do not have extra copies of the statement which I am going to read this morning. I have only the original and a carbon copy in the office. Some extra copies can be prepared, however, if needed.

I want to express my appreciation to the committee for the opportunity to testify on behalf of my bill, S. 1352.

I would like to have permission at the close of my testimony, Mr. Chairman, to have published in the record certain communications from various organizations that I have received in support of my bill, if that meets with the pleasure of the committee.

Senator FERGUSON. Yes; those will be inserted at the conclusion of your testimony.

Senator MORSE. Mr. Chairman, I understand that this committee has invited certain witnesses who will furnish it with extensive facts and figures on lynchings in the United States. Therefore, I will not take up the time of the committee by presenting material in that area, but will, instead, confine myself to analyzing the provisions of the bill which I have introduced, S. 1352, and to setting forth the constitutional basis for its provisions.

Before I proceed to do so, however, I should like to make one or two general observations. During the past 50 years approximately 5,000 persons are known to have been lynched in the United States, and I take my figures from a source that is not in dispute as far as the accuracy of the figures is concerned; I take my figures from the reports of the Tuskegee Institute, its reports on the matter of lynching. I would like to have permission to have filed as a part of my testimony, Mr.

72137-48- -3

29

Chairman, the lynching record from 1919 to 1945. Also, I would like to have permission to bring it up to date. I have it through 1940, and the only copies I have are the originals, but I can assure the chairman that I shall supply the reporter with duplicates for the record.

Senator FERGUSON. All right; if you will do that, it will be inserted at this point in the record.

Senator MORSE. Yes, sir.

(The lynching record referred to, to be submitted by Senator Morse, is as follows:)

Source: Negro Year Book 1947, Tuskegee Institute, Alabama, p. 306.

Senator MORSE. As I was saying, during the past 50 years approximately 5,000 persons are known to have been lynched in the United States. These men and women had their lives taken from them on the most varied and capricious pretexts. The mobs who inflicted their deaths engaged in violence which sank to every level of brutality. Some of the victims were lynched because of the suspicion that they had committed a crime; others because they held or advocated beliefs unpopular in their communities; and still others were guilty of nothing more grievous than having been born a member of a minority race or nationality. But whatever the cause and whatever the method the lynch mob employed, it was unlawful, immoral, and indefensible.

How much longer can we as a nation countenance these atrocities and still live with ourselves, our conscience, and the world community? I say we should end lynching now-this Eightieth Congress-by enacting into the law the bill my colleague, Senator Wagner, and I have introduced.

I can think of no single act that is more revolting to the forces of decency-and more degrading to the perpetrators themselves—than that of lynching. This terrible lynch sickness has not been confined to the boundaries of any one State. It has flowed and ebbed-ebbed and flowed-through every section of the country and in nearly every State. It has infected the life of the entire Nation.

I now come to an analysis of the provisions of S. 1352.

The first section of my bill is composed of congressional findings which I believe comport with the facts, show the necessity for the subsequent provisions of the bill, and lay a firm constitutional basis for its enactment. Subsection (a) of section 1 begins with a recital, which I think no one can challenge, that—

The duty of each State to refrain from depriving any person of life, liberty, or property without due process of law, and from denying to any person within its jurisdiction the equal protection of the laws, imposes on all States the obligation to exercise their police powers in a manner which will protect all persons equally without discrimination because of race, creed, color, national origin, ancestry, language, or religion.

The next statement in subsection (a) of section 1 is also an indisputable fact. There can be no doubt that a State does deprive a person of life, liberty, or property without due process of law and denies him the equal protection of the laws when the State allows mobs to take that life without any interference from the State.

It is, unfortunately, a fact well recognized by all students of lynching in our country and all too well known in the other nations of the world that members of minority races in the United States, particularly Negroes, can be lynched in large areas of the United States with either the active cooperation of police officers or with no fear that the police will interfere to prevent the lynching and with no fear that the State will later punish the lynchers.

Even the Southern Commission on the Study of Lynching, whose investigations and conclusions are set forth by a Prof. Arthur Raper in his book, The Tragedy of Lynching, published by the University of North Carolina Press in 1933, points out that in the vast majority of the lynchings investigated, the police, if not openly participants in the lynching, at least overlooked or condoned the mob action.

Raper quotes as typical of "a common attitude of police officers" the remark of one sheriff, "do you think I am going to risk my life protecting" a Negro? (Raper, p. 13). Raper also quotes the sheriff of McIntosh County, Ga., where George Grant was short to death in a second-floor cell of the county jail on September 8, 1930, as stating that he was glad the death had occurred. "Except for my oath and bond," he added, "I'd have killed him myself "(Raper, p. 13). The sheriff of Thomas County, Ga., reported with satisfaction how he "saw to it" that the lynchers got the "right man" (Raper. p. 13).

Raper in another publication, Race and Class Pressure, page 275, states that in his study of 100 lynchings since 1929 he estimates that* at least one-half of the lynchings are carried out with police officers participating and that, in nine-tenths of the others, the officers either condone or wink at the mob action.