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COMMITTEE ON THE JUDICIARY.
HOUSE OF REPRESENTATIVES.
ANDREW J. VOLSTEAD, Minnesota, Chairman. DICK T. MORGAN, Oklahoma.
RICHARD YATES, Illinois. GEORGE S. GRAHAM, Pennsylvania.
WELLS GOODYKOONTZ, West Virginia. LEONIDAS C. DYER, Missouri.
ROBERT Y. THOMAS, Jr., Kentucky. JOSEPH WALSH, Massachusetts.
WILLIAM L. IGOE, Missouri. C. FRANK REAVIS, Nebraska.
WARREN GARD, Ohio. JAMES W. HUSTED, New York.
RICHARD S. WHALEY, South Carolina. GILBERT A. CURRÍE, Michigan.
THADDEUS H. CARAWAY, Arkansas, DAVID G. CLASSON, Wisconsin.
M. M. NEELY, West Virginia. W. D. BOIES, Iowa.
HENRY J. STEELE, Pennsylvania. CHARLES A. CHRISTOPHERSON, South HATTON W. SUMNERS, Texas. Dakota.
W. C. PREUS, Clerk.
COMMITTEE ON THE JUDICIARY,
HOUSE OF REPRESENTATIVES,
Washington, D. C., Thursday, January 29, 1920. The committee met at 10.30 o'clock a. m., Hon. Andrew J. Volstead (chairman) presiding.
Mr. DYER. Mr. Chairman, this hearing is called for the consideration of some bills before the committee touching the question of the enactment of a law to punish those who participate in lynchings or mob riots. There are three bills before the committee. One is by Mr. Moores of Indiana, which is H. R. 11873; there is one, H. R. 4123, introduced by Mr. Dallinger of Massachusetts, and one, H. R. 259, introduced by myself.
I do not care to take the time of the committee in calling attention to the features of my bill. Mr. Moores of Indiana is here and also Mr. Dallinger, and perhaps they would like to say a word about their bills before we take up the hearings generally.
The CHAIRMAN. Do you care to be heard at this time, Mr. Dallinger?
Mr. DALLINGER. Certainly; if it is agreeable, Mr. Chairman.
STATEMENT OF HON. FREDERICK W. DALLINGER, A REPRE
SENTATIVE IN CONGRESS FROM THE STATE OF MASSACHUSETTS.
Mr. DALLINGER. I will state that the bill which I introduced is very similar, almost identical, to the one introduced by Mr. Dyer. I did not know Mr. Dyer had introduced his bill in this Congress. Both of these measures, H. R. 259 and 4123, are substantially the bill that was drafted by Hon. William H. Moody at the time he was a Member of Congress. Mr. Moody was one of the leading lawyers of the United States and was, as you know, Attorney General of the United States and later Associate Justice of the Supreme Court of the United States. He believed that this bill was constitutional, The first section reads:
That the putting to death within any State of any citizen of the United States by a mob or riotous assemblage of three or more persons openly acting in concert, in violation of law and in default of protection of such citizen by the officers thereof, shall be deemed a denial to such citizen by that State of the equal protection of the laws and a violation of the peace of the United States and an offense against the same.
In other words, it is based, as I understand, upon the provision of the fourteenth amendment of the Constitution, which guarantees to every citizen of the United States the equal protection of the laws and denies or prohibits the passage of any law by any State denying the equal protection of the laws.
The CHAIRMAN. Simply the fact that a State did not take any action to protect him is supposed to be sufficient ?
Mr. DaLLINGER. Yes, Mr. Chairman, that is the ground on which it is made a Federal offense.
Mr. SUMNERS. Mr. Dallinger, does your bill go to the extent that this Federal law would be applicable in the event the State made no effort to protect? Would not the fact that the State did not protect, regardless of the question of whether an effort was made or not, give the Federal court jurisdiction under the bill ?
Mr. DALLINGER. The section reads in default of protection.
Mr. SUMNERS. Do you consider default to mean the absence of an effort to protect, or in the absence of protection?
Mr. DALLINGER. I should say in the absence of protection.
Mr. SUMNERS. That is what I thought. That is the way I construe the bill; the fact that a man was lynched, the issue of whether or not an effort was made to protect would not be involved ?
Mr. DALLINGER. Of course there might be some insincere efforts · to protect.
Mr. SUMNERS. Yes, I understand. I was asking for information, purely; I was just trying to get at the legal status.
The CHAIRMAN. Take, for instance, where a sheriff tries to protect and fails, he is overawed; would this afford any protection ?
Mr. SUMNERS. He may be shot and the prisoner taken away from him.
Mr. DALLINGER. I think it would; I do not think that would be protection. If a community where those things are occurring does not give to the sheriff and the officers of the law the protection which they should have for the enforcement of the law, I do not consider that there is the equal protection to which every citizen is entitled.
Mr. HUSTED. Does not default of protection mean the default of adequate protection?
Mr. DALLINGER. I think so, sir.
Mr. IGOE. Have you examined the authorities and decisions under the fourteenth amendment, Mr. Dallinger, as to the extent of the authority of the United States in the way of legislation under that amendment?
Mr. DALLINGER. I do not think this matter has ever come up or ever been passed upon-this particular phase of it.
Mr. IGOE. Yes, I recall one case; I can not put my hand on it now, but a case came up from Alabama. There was one case that arose; I think it came up in the Federal court for the District, perhaps in