the validity of that prohibition, a premise which we deem it unnecessary and therefore inappropriate to reexamine in this case. But assuming, for purposes of argument only, that the basic prohibition is constitutional, it does not follow that there is no constitutional limit to the means which may be used to enforce it. In the light most favorable to the State, this case presents a conflict between the State's right to formulate a policy of landholding within its bounds and the right of American citizens to own land anywhere in the United States. When these two rights clash, the rights of a citizen may not be subordinated merely because of his father's country of origin. "Since the view we take of petitioners' first contention requires reversal of the decision below, we do not reach their other contentions: That the alien land law denies ineligible aliens the equal protection of the laws, and that failure to apply any limitations period to escheat actions under that law takes property without due process of law." Strauder v. West Virginia ((1880) 100 U. S. 303) Strauder, a Negro, was convicted of murder by a jury composed entirely of white men under a State law limiting jury service to white, male, citizens. He claimed this law denied him the equal protection of the laws required by the fourteenth amendment. In reversing the Supreme Court said: 66* * * It was designed to assure to the colored race the enjoyment of all the civil rights that under the law are enjoyed by white persons, and to give to that race the protection of the General Government, in that enjoyment, whenever it should be denied by the States. It not only gave citizenship and the privileges of citizenship to persons of color, but it denied to any State the power to withhold from them the equal protection of the laws, and authorized Congress to enforce its provisions by appropriate legislation. * * * * "The fourteenth amendment makes no attempts to enumerate the rights it designed to protect. It speaks in general terms, and those are as comprehensive as possible. Its language is prohibitory; but every prohibition implies the existence of rights and immunities, prominent among which is an immunity from inequality of legal protection, either for life, liberty, or property. Any State action that denies this immunity to a colored man is in conflict with the Constitution." Screws v. U. S. (1945) 325 U. S. 91) Petitioner Screws was sheriff of Baker County, Ga. He enlisted the assistance of petitioner Jones, a policeman, and petitioner Kelley, a special deputy, in arresting Robert Hall, a citizen of the United States and of Georgia. The arrest was made late at night at Hall's home on a warrant charging Hall with theft of a tire. Hall, a young Negro about 30 years of age, was handcuffed and taken by car to the courthouse. As Hall alighted from the car at the courthouse square, the three petitioners began beating him with their fists and with a solid-bar blackjack about 8 inches long and weighing 2 pounds. They claimed Hall had reached for a gun and had used insulting language as he alighted from the car. But after Hall, still handcuffed, had been knocked to the ground they continued to beat him from 15 to 30 minutes until he was unconscious. Hall was then dragged feet first through the courthouse yard into the jail and thrown upon the floor dying. An ambulance was called, and Hall was removed to a hospital, where he died within the hour and without regaining consciousness. There was evidence that Screws held a grudge against Hall and had threatened to "get" him. * An indictment was returned against petitioners-one count charging a violation of section 20 of the Criminal Code (18 U. S. C. 52), and another charging a conspiracy to violate section 20 contrary to section 37 of the Criminal Code (18 U. S. C. 88). * The indictment charged that petitioners, acting under color of the laws of Georgia, "willfully" caused Hall to be deprived of "rights, privileges, or immunities secured or protected" to him by the fourteenth amendment-the right not to be deprived of life without due process of law; the right to be tried, upon the charge on which he was arrested, by due process of law and if found guilty to be punished in accordance with the laws of Georgia; that is to say that petitioners "unlawfully and wrongfully did assault, strike, and beat the said Robert Hall about the head with human fists and a blackjack causing injuries" to Hall "which were the proximate and immediate cause of his death." A like charge was made in the conspiracy count. 72144-48-ser. 14 -14 * The case was tried to a jury. The court charged the jury that due process of law gave one charged with a crime the right to be tried by a jury and sentenced by a court. On the question of intent it charged that “* if these defendants, without its being necessary to make the arrest effectual or necessary to their own personal protection, beat this man, assaulted him, or killed him while he was under arrest, then they would be acting illegally under color of law, as stated by this statute, and would be depriving the prisoner of certain constitutional rights guaranteed to him by the Constitution of the United States and consented to by the State of Georgia." [No exception was taken to this charge.] The jury returned a verdict of guilty and a fine and imprisonment on each count was imposed. It was argued that there was no ascertainable standard of guilt. The serious character of that challenge to the constitutionality of the act is emphasized if the customary standard of guilt for statutory crimes is taken. As we shall see, specific intent is at times required (Holmes, The Common Law, pp. 66 et seq.). But the general rule was stated in Ellis v. United States (206 U. S. 246, 257), as follows: "If a man intentionally adopts certain conduct in certain circumstances known to him, and that conduct is forbidden by the law under those circumstances, he intentionally breaks the law in the only sense in which the law ever considers intent." (And see Horning v. District of Columbia, (254 U. S. 135, 137); Nash v. United States (229 U. S. 373, 377). Under that test a local law-enforcement officer violates section 20 and commits a Federal offense for which he can be sent to the penitentiary if he does an act which some court later holds deprives a person of due process of law. And he is a criminal though his motive was pure and though his purpose was unrelated to the disregard of any constitutional guarantee. The treacherous ground on which State officials— police, prosecutors, legislators, and judges-would walk is indicated by the character and closeness of decisions of this Court interpreting the due-process clause of the fourteenth amendment. The Court pointed out that "willful" when used in a criminal statute generally means an act done with a bad purpose. An evil motive to accomplish that which the statute condemns becomes a constituent element of the crime. However, the presence of a bad purpose or evil intent alone may not be sufficient. "We do say that a requirement of a specific intent to deprive a person of a Federal right made definite by decision or other rule of law saves the act from any charges of unconstitutionality on the grounds of vagueness. * * The fact that the defendants may not have been thinking in constitutional terms is not material where their aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution. When they so act they at least act in reckless disregard of constitutional prohibitions or guarantees. Likewise, it is plain that basic to the concept of due process of law in a criminal case is a trial-a trial in a court of law, not a 'trial by ordeal'" (Brown v. Mississippi (297 U. S. 278, 285)). It could hardly be doubted that they who "under color of any law, statute, ordinance, regulation, or custom" act with that evil motive violate section 20. Those who decide to take the law into their own hands and act as prosecutor, jury, judge, and executioner plainly act to deprive a prisoner of the trial which due process of law guarantees him. And such a purpose need not be expressed; it may at times be reasonably inferred from all the circumstances attendant on the act. See Tot v. United States (319 U. S. 463). The court disagreed with the contention that Screws did not act "under color of any law"; said further: 66* * * He who acts under color of law may be a Federal officer or a State officer. He may act under color of Federal law or of State law. The statute does not come into play merely because the Federal law or the State law under which the officer purports to act is violated. It is applicable when and only when someone is deprived of a Federal right by that action. The fact that it is also a violation of State law does not make it any the less a Federal offense punishable as such. Nor does its punishment by Federal authority encroach on State authority or relieve the State from its responsibility for punishing State offenses. * * Here the State officers were authorized to make an arrest and to take such steps as were necessary to make the arrest effective. They acted without authority only in the sense that they used excessive force in making the arrest effective. It is clear that under 'color' of law means under 'pretense' of law. * * Reversed. TESTIMONY OF REV. C. W. INGRAM, REPRESENTATIVE OF THE MINISTERS' CONFERENCE OF PITTSBURGH, PA., AND VICINITY, IN SUPPORT OF H. R. 3488, ANTILYNCH BILL FEBRUARY 19, 1948. Hon. CLIFFORD CASE, Chairman of the House Judiciary Subcommittee, Washington, D. C. DEAR SIR: Acting upon your written suggestion, I am respectfully submitting the following statement to be included in records of the hearings on H. R. 3488 before your committee. Gentlemen: We are American gospel ministers speaking to American legislators in interest of the legal rights, fair play, and equal protection of Americans. A Federal law making lynching a crime punishable in Federal court rather than local court is the immediate remedy. We believe the Wagner-Case antilynch legislation, H. R. 3488, is such a law. We believe that this law will go far toward securing equal protection for every American citizen; a right that is guaranteed by the Constitution of the United States of America. The bill under consideration is not intended to do away with capital punishment. Neither is it a measure to protect criminals, outlaws, and murderers from the fullest extent of punishment due them by law, as results of the crime committed. The antilynch legislation, H. R. 3488, which had its origin in the thinking and humane consideration of American minds is primarily intended to stop mobists, outlaws, and murderers from taking the administering of punishment to guilty and innocent persons into their own hands; lynching, burning at stake, and dragging them through the streets in the name of American justice. This is an act which writes a blackness across the fair face of American liberty that cannot be washed away by all the purging waters which flow through the thousands of streams of American democracy. Again this measure is intended to reassure to every American citizen due process of law by which a verdict of guilt or innocence is reached by a group of reasonably minded men or women as a result of the facts revealed in the case; and sentence passed by a judge whose ability, experience, and impartial honesty recommends him as an individual whose judgment can be trusted. Since you, gentlemen, are the highest type of American citizen, individuals whom the American public has placed in the highest positions of trust that the American Government has to offer; we are sure that you can be relied upon to support everything that is American. We, therefore, most earnestly appeal to you to give your support in bringing this bill, which is American in every detail, to the floor of the House. Respectfully submitted. THE PITTSBURGH MINISTERS' CONFERENCE, REV. C. W. INGRAM, Representative. A STATEMENT ON THE CONSTITUTIONALITY OF THE SO-CALLED ANTILYNCHING BILL1 Most of the antilynching bills follow a general pattern. They define lynching; provide a severe penalty for aiding or committing that act; make local officers criminally liable for failure to prevent a lynching or to apprehend the members of a lynching mob; and they make local government units liable in damages for the failure or neglect of their officers to prevent the crime. Activities of the Federal Government in the past with regard to mob violence have been limited largely to the application of sections 19 and 20 of the Criminal Code (U. S. C., 18:51 and 52) which are fragments of the Civil Rights Acts of 1866 and 1871 and the Enforcement Act of 1870 (see 14 Stat. 27; 16 Stat. 140, 433; 17 Stat. 13) and which were passed primarily to effectuate the guaranties of the thirteenth, fourteenth, and fifteenth amendments. See Coleman, Freedom From Fear on the Home Front (Ia. L. Rev. 29: 415, 417). These provisions read: 1 Source: Frank B. Horne, the Library of Congress, Legislative Reference Service, Federal Law Section, Washington, D. C., January 26, 1948. "Section 51 (Criminal Code, sec. 19). Conspiracy to injure persons in exercise of civil rights "If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same, or if two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than $5,000 and imprisoned not more than ten years, and shall, moreover, be thereafter ineligible to any office, or place of honor, profit, or trust created by the Constitution or laws of the United States (Mar. 4, 1909, ch. 321, sec. 19, 35 Stat. 1092)." "Section 52 (Criminal Code, sec. 20). Depriving citizens of civil rights under color of State laws "Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects, or causes to be subjected, any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution and laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000, or imprisoned not more than one year, or both (March 4, 1909, ch. 321, sec. 20, 35 Stat. 1092)." It is not the purpose of this study to discuss the application of these sections, rather, the discussion will be limited to those major proposals which would make liable, to the mob victim or his next of kin, those governmental subdivisions of a State whose officers have been lacking in diligence. Suits to enforce this liability shall be brought by the Attorney General or may be brought by counsel retained by the party in interest. That the State itself may give such a remedy against the political subdivision has been decided by the United States Supreme Court and numerous State courts. In upholding the validity of an Illinois act requiring municipalities to indemnify the owners of property for damages occasioned by mobs and riots. Mr. Justice Lurton stated in City of Chicago v. Sturges (1911) (222 U. S. 313, 323): "The policy of imposing liability upon a civil subdivision of government exercising delegated police power is familiar to every student of the common law. We find it recognized in the beginning of the police system of Anglo-Saxon people. Thus, "The Hundred,' a very early form of civil subdivision, was held answerable for robberies committed within the division. By a series of statutes, beginning possibly in 1285, in the statutes of Winchester, 13 Edw. I, c. 1, coming on down to the 27th Elizabeth, c. 13, the Riot Act of George I (1 Geo. I, St. 2) and act of 8 George II, c. 16, we find a continuous recognition of the principle that a civil subdivision entrusted with the duty of protecting property in its midst and with police power to discharge the function, may be made answerable not only for negligence affirmatively shown, but absolutely as not having afforded a protection adequate to the obligation. Statutes of a similar character have been enacted by several of the States and held valid exertions of the police power. Darlington v. Mayor &c. of New York (31 N. Y. 164); Fauvia v. New Orleans (20 La. Ann. 410); County of Allegheny v. Gibson &c. (90 Pa. St. 397). The imposition of absolute liability upon the community when property is destroyed through the violence of a mob is not, therefore, an unusual police regulation. Neither is it arbitrary, as not resting upon reasonable grounds of policy. Such a regulation has a tendency to deter the lawless, since the sufferer must be compensated by a tax burden which will fall upon all property, including that of the evil doers as members of the community. It is likewise calculated to stimulate the exertions of the indifferent and the law-abiding to avoid the falling of a burden which they must share with the lawless. In that it directly operates on and affects public opinion, it tends strongly to the upholding of the empire of the law." The proposed bills represent a renewed effort to make use of the enabling clause of the fourteenth amendment to prevent lynchings resulting from action or inaction on the part of local authorities. See the Federal antilynching bill (Col. L. R. 38: 199, 206). Before entering the discussion of the possible application of the powers granted in the fourteenth amendment it would be well, perhaps, to dispose of possible arguments that the eleventh amendment precludes such civil liability on the part of political subdivisions of a State. The eleventh amendment specifically pro vides that the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign states. This amendment was the direct result of the decision of the Supreme Court in Chisholm v. Georgia (1793) (2 Dall. 419) which held that a State was liable to be sued by a citizen of another State or a foreign state. It is part of our history, that, at the adoption of the Constitution, all States were greatly indebted; and the apprehension that actions on these debts might be prosecuted in the Federal courts formed a very serious objection to ratification of that instrument. Suits were instituted, and the court maintained its jurisdiction. The alarm was general and to quiet the apprehensions that were so extensively entertained, this amendment was proposed and adopted (Cohens v. Virginia (1821) 6 Wheat. 264, 406). The very object and purpose of the eleventh amendment were to prevent the indignity of subjecting a sovereign State to the coercive process of judicial tribunals at the instance of private parties (Ex parte Ayers (1887) 123 U. S. 443, 505). Consequently, a suit against a Governor in his official capacity to recover moneys in the State treasury, or a suit to compel performance of a State contract by mandamus against its officers requiring application of funds in the State treasury and the collection of a specific tax, are considered suits against the State. See Governor of Georgia v. Madrazo (1828) (1 Pet. 110); Kentucky V. Dennison (1861) (24 How. 66, 98); Louisiana v. Jumel (1883) (107 U. S. 711). The right, therefore, of an individual to sue a State, in either a Federal or a State court, cannot be derived from the Constitution or the laws of the United States. It can only come from the consent of the State (Palmer v. Ohio (1918) 248 U. S. 32, 34) citing authorities. However, this amendment does not necessarily prevent suits by individuals against defendants who claim to act as officers of a State or to recover money or property unlawfully taken from them in behalf of a State (Re Taylor (1893) 149 U. S. 164, 190; Scott v. Donald (1897) 165 U. S. 58, 67; 165 U. S. 107). Nor can the immunity afforded by the eleventh amendment be availed of by public agents when sued for their own torts where, under color of their office, they have injured one of the State's citizens. In such instances the wrongdoer may be treated as a principal and therefore found individually liable. See Hopkins v. Clemson Agricultural College (1911) (221 U. S. 636, 643); Belknap v. Schild (1896) (161 U. S. 10, 18); Old Colony Trust Co. v. Seattle (1926) (271 U. S. 426); and Worcester County Trust Co. v. Riley (1937) (302 U. S. 292). See also Refoule v. Ellis (1947) (74 F. Supp. 336, 338). In the public law of the United States, then, a State is sovereign or at least quasi-sovereign. Not so, a local governmental unit, though the State may have invested it with governmental power. Such a governmental unit may be brought into court against its will without violating the eleventh amendment. See the dissent of Mr. Justice Cardozo in Ashton v. Cameron County District (1936) (298 U. S. 513, 543) citing Lincoln County v. Luning (1890) (133 U. S. 529) and Hopkins v. Clemson College, supra. In Lincoln County v. Luning Mr. Justice Brewer had stated: "With regard to the first objection, it may be observed that the records of this court for the last 30 years are full of suits against counties, and it would seem as though by general consent the jurisdiction of the Federal courts in such suits had become established. But irrespective of this general acquiescence, the jurisdiction of the circuit courts is beyond question. The eleventh amendment limits the jurisdiction only as to suits against a State. It was said by Chief Justice Marshall, in Osborn v. The Bank of the United States (9 Wheat. 738, 857), that 'the eleventh amendment, which restrains the jurisdiction granted by the Constitution over suits against States, is of necessity limited to those suits in which the State is a party on the record.' "While that statement was held by this court in the case, of In re Ayers (123 U. S. 443), to be too narrow, yet by that decision the jurisdiction was limited only in respect to those cases in which the State is a real, if not a nominal defendant; and while the county is territorially a part of the State, yet politically it is also a corporation created by and with such powers as are given to it by the State. In this respect it is a part of the State only in that remote sense in which any city, town, or other municipal corporation may be said to be a part of the State. Metropolitan Railroad Co. v. District of Columbia (132 U. S. 1)." Thus sovereignty of the State is protected. However, the separate political communities under a State appear to have no more sovereignty than the District of Columbia. In other words the subordinate legislative or municipal |