between the Constitution and the statute is clear and strong (Ibid, citing Wilkes v. Dinsman (1849) 7 How. 89, 127; U. S. v. Harris (1883) 106 U. S. 629, 635, and other cases).

Among the powers expressly conferred upon Congress by the Constitution is the power to make all laws necessary and proper for carrying into execution the powers specifically granted to it, and all other powers vested by the Constitution in the Government of the United States, or any department or officer thereof. As stated earlier, Congress may use any means, in the exercise of this general power of legislation, deemed by it most eligible and appropriate, which are adapted to the end to be accomplished, and are consistent with the letter and the spirit of the Constitution (Logan v. U. S. (1892) 144 U. S. 263, 283, citing McCulloch v. Maryland, 4 Wheat. 316, 421; and Julliard v. Greenman, 110 U. S. 421, 440, and 441).

If the decisions in U. S. v. Classic ((1941) 313 U. S. 299); Smith v. Allwright ((1944) 321 U. S. 649) ; and U. S. v. Screws ((1945) 325 U. S. 91) are indicative of the present trend to afford protection for civil and political rights, then perhaps some of the restrictions afforded by earlier decisions on the fourteenth amendment will be found not to preclude the enforcement of the proposed liability against individuals and political subdivisions. This would, as indicated earlier, require a construction of the equal protection clause to comprehend cases where such protection is withheld by reason of inaction on the part of local authorities, but such a construction, as Willoughby pointed out, could possibly also comprehend local political assassinations, gang warfare, or any other type of case where a claim could be substantiated that local officers were derelect in their duties to the detriment of individual rights.

*

On the other hand it should be noted that, generally speaking, the equal protection clause has been construed heretofore to protect individuals only against State action and not against conduct of other individuals. See Willis, Constitutional Law * * page 572 citing the Slaughter-House cases ((1872) 16 Wall. 36); Civil Rights cases ((1883) 109 U. S. 3); and Nixon v. Condon ((1932) 286 U. S. 73). See also Watson, The Constitution * volume 2, pages 1630-1638 wherein he points out the reluctance of government, as it was established in the early history of mankind, to recognize or accept the doctrine of the equality of men before the law. This reluctance is partially illustrated in U. S. v. Harris ((1883) 106 U. S. 629, 644) wherein Mr. Justice Woods speaking of section 1 of the fourteenth amendment, stated:

"It was never supposed that the section under consideration conferred on Congress the power to enact a law which would punish a private citizen for an invasion of the rights of his fellow citizens, conferred by the State of which they were both residents, on all its citizens alike."

In this connection, however, attention is invited to the Restrictive Covenants cases recently argued before the Supreme Court (Shelley v. Kraemer, Docket No. 72; McGhee v. Sipes, No. 87; Hurd v. Hodge, No. 290; Urciolo v. Hodge No. 29) wherein the Civil Rights cases were again attached. If the arguments against the covenants, as summarized (16 L. W. 3219-3224), are adopted by the Court, then there would appear to be no further constitutional impediment to the enactment of an antilynching bill.

DEPARTMENT OF JUSTICE,

OFFICE OF THE ASSISTANT TO THE ATTORNEY GENERAL,
Washington, D. C., February 10, 1948.

Hon. EARL C. MICHENER,

Chairman, Committee on the Judiciary,

House of Representatives, Washington, D. C.

MY DEAR MR. CHAIRMAN: This is in response to your request for the views of this Department concerning the bills H. R. 41, H. R. 57, H. R. 77, H. R. 223, H. R. 228, H. R. 278, H. R. 800, H. R. 1709, H. R. 3618, H. R. 4528, H. R. 4577, H. R. 3488, H. R. 3850, and H. R. 4155, each designed to prevent the crime of lynching. These bills fall generally into two distinct categories. In the first group are H. R. 41, H. R. 57, H. R. 77, H. R. 223, H. R. 228, H. R. 278, H. R. 800, and H. R. 1709. These are limited in their effect to providing a criminal penalty against State officers and imposing civil liability on State governmental subdivisions when a lynching has occurred and there has been neglect, failure, or refusal to perform diligently the duties imposed by State law to prevent the lynching, or to apprehend or prosecute members of the lynch mob. The definition of a

lynch mob in this group requires the participation of three or more persons in the exercise or attempt to exercise by physical violence the power of correction or punishment of persons held, charged, convicted, or suspected of crime.

Among the points of difference between the bills of the first group is the provision in section 5 of H. R. 278 and H. R. 1709 creating a prima facie evidence rule regarding the municipal liability. This provision is omitted from the other bills of this group. H. R. 228 and H. R. 800 contain a defective and unfinished proviso at the end of section 5 (1) on page 5 of each bill. By virtue of the provision in section 5 (2) of H. R. 800, the Attorney General would be required to initiate civil action in every case. It is believed that in addition claimants should be given the opportunity to proceed through private counsel on their own initiative if they so desire.

In the second category of the bills above mentioned are H. R. 3618, H. R. 4528, H. R. 4577, H. R. 3488, H. R. 3850, and H. R. 4155. These bills not only include the same sanctions against officers and Government subdivisions as are contained in the bills of the first category, but they also seek to make private individuals criminally responsible for participation in a lynching. This second group of bills is broader than group one in that they would provide punishment for, in addition to the crime of lynching, the denial of equal protection of the laws because of race, color, creed, national origin, ancestry, language, or religion.

Of this last-mentioned group of bills, three of them, namely H. R. 4155, H. R. 3850, and H. R. 3488, are limited to the lynching of citizens, whereas the remainder of this group would cover the lynching of citizens and other persons alike. All would create a right of citizens to be free from lynchings. All would fix the minimum assemblage to constitute a lynch mob at two.

Under a line of decisions holding that the fourteenth amendment relates to and is a limitation or prohibition upon State action and not upon acts of private individuals (United States v. Harris, 106 U. S. 629; United States v. Hodges, 203 U. S. 1), doubt has been entertained as to the validity of a provision which sought to punish persons as individuals for the crime of lynching. However, the provision which would make persons as individuals punishable for the crime of lynching need not rest solely upon the fourteenth amendment. Upon proper congressional findings, it would appear that the constitutional basis for the imposition of such liability might include not only the fourteenth amendment but also the law of nations, the treaty powers under the United Nations' Charter, the power to protect all rights flowing from the Constitution and laws of the United States, and the power to secure to the States a republican form of government. As stated by the President in his message to the Congress, of February 2, 1948, specific Federal legislation is needed to deal with the crime of lynching to insure every person accused of an offense to a fair and orderly trial in an impartial court.

Sincerely yours,

PEYTON FORD,
The Assistant to the Attorney General.

STATEMENT OF SENATOR WAYNE MORSE, IN SUPPORT OF A FEDERAL ANTILYNCHING BILL

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. 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.

ANALYSIS OF 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 shot 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 onehalf 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." Raper also reports that his study shows that the lynchers usually go unmolested by the courts. Rarely are they even brought before the grand jury, even more rarely does the grand jury indict, still more unusual is a conviction, and, in the rare instances of a conviction, they are usually pardoned (Raper, pp.. 16-19, 32-33).

In a more recent study made by Gunnar Myrdal, the distinguished Swedish social scientist, who came to this country at the request of the Carnegie Foundation in order that an unbiased evaluation might be made of race relations in this country, the same general pattern is found to exist (Myrdal, "An American Dilemma," p. 562)..

In view of this fact, I believe that Congress speaking in reference to lynching may properly find that "when a State, by the malfeasance or nonfeasance of its officials, permits persons not expressly designated as its agents to punish any person within its jurisdiction for crimes or alleged crimes, without trial or other due process of law, and condones such conduct by participating in or facilitating such conduct or by failing to punish either those of its officials who permit such conduct or those guilty of the conduct, the State effectively deprives the victims of such conduct of life, liberty, or property without due process of law and denies to them the equal protection of the laws."

Section 1 (a) contains the further finding of Congress that "lynching constitutes an organized effort not only to punish the persons lynched but also to terrorize the groups, in the community or elsewhere, of which the persons lynched are members by reason of their race, creed, color, national origin, ancestry, language, or religion." The factual basis for this finding is a matter of common knowledge. Other witnesses before this committee will undoubtedly present evidence in support of it.

The research of the Southern Commission on the Study of Lynching, already referred to, shows that racial antagonism and an effort to keep Negroes from achieving a status of equality, socially or economically, with white persons were the basis of most of the lynchings (Raper, The Tragedy of Lynching, pp. 48-49, 50-51, 56-58, 73-74, 201, 221, 299-300, 317-318, 340).

Raper found that while usually the white persons in the community claimed that the lynched victim had been guilty of some crime, in certain instances the only causes asserted were such things as seeking employment in a restaurant or bringing a suit against a white man for money owed him (pp. 36-37; cf. floggings for similar reasons, p. 201). In many of the cases where the white persons accused the lynch victim of a crime, evidence disclosed prior resentments at the economic progress he or other Negroes in the community had been making (pp. 172-173, 270, 285, 340-342, 350-351, 466). Raper lists instances of violence used to drive a Negro out of town when he had opened a pressing establishment (p. 201), to drive out a successful Negro grocer (p. 466), to drive all Negroes from farms in one community (p. 317), from jobs in mines in another community (p. 313), and from all regular employment, even that of janitor or bellboy, in another (p. 340).

Raper concludes: "The Black Belt lynching is something of a business transaction * ** * The whites, there, chiefly of the planter class and consciously dependent upon the Negro for labor, lynch him to conserve traditional landlordtenant relations" (p. 57).

* * *

Ray Stannard Baker, in 1908, stated: "A community will rise to mob Negroes or to drive them out of the country because the Negro is becoming educated, acquiring property, and getting out of his place" (Following the Color Line, p. 81).

Walter White states: "Lynching is much more an expression of southern fear of Negro progress than of Negro crime" (Rope and Faggot, p. 11).

Gunnar Myrdal states: "A lynching is not merely a punishment against an individual but a disciplinary device against the Negro group" (An American Dilemma, p. 561).

Section 1 (a) concludes with the finding which necessarily follows from the foregoing, that "by condoning lynching, the State makes the lynching, punishment without due process of law, or other denial of the equal protection of the laws its own act and gives the color and authority of State law to the acts of those guilty of the lynching, punishment, or other denial."

I believe this statement shows to the whole world why Congress should enact my bill and also indicates the firm constitutional basis on which it rests. However, before referring to the constitutional law to support the bill, I desire to explain the other sections of the bill and why they are drafted as they are.

Section 2 (b) contains the congressional finding which affords the basis for resting the constitutional ground of the bill on the treaty obligations assumed by the United States under the United Nations Charter. This subsection is reinforced by the findings in subsection (b) of section 1 which recites that "when persons within a State are deprived by a State or by individuals within a State, with or without condonation by a State or its officials, of equal protection of the laws because of race, color, creed, national origin, ancestry, language, or religion, they are denied, or limited in the exercise of human rights and fundamental freedoms." The United States has recognized repeatedly both by court decision and by legislative enactment that racial discrimination is inconsistent with fundamental human rights observed by all civilized nations.

Subsecton (c) of section 1 recites that "the law of nations requires that every person be secure against violence to himself or his property by reason of his race, creed, color, national origin, ancestry, language, or religion."

Section 2 of my bill points out that the succeeding provisions of the proposed legislation are nceessary in order to (a) enforce the provisions in the Fourteenth amendment; (b) meet the treaty obligations assumed by the United States under articles 55 and 56 of the United Nations Charter; and (c) define and punish offenses against the law of nations.

Section 3 constitutes a congressional declaration that the right to be free of lynching is a right accruing to the citizens of the United States by virtue of such

citizenship. This declaration is a definition by Congress of one of the privileges and immunities referred to in the second sentence of section 1 of the Fourteenth amendment.

Section 4 of my bill defines lynching. For the purposes of this act, it is proposed that lynching shall consist of violence by two or more persons upon any person or his property which is committed because the perpetrators have a racial antagonism toward the victim or because the perpetrators desire to take the law into their own hands and punish the victim. This definition would clearly exclude all the usual murder cases.

I have no desire to substitute the Federal Government for the State Government in punishing the usual type of violence. There has been no showing that the States have failed to do a reasonably efficient job in protecting the lives and property of their citizens except where the victim is of a minority racial or national group or where the citizens desired to punish an accused without waiting for trial. It is in the latter situation that the States have fallen down on the job. The United States can no longer stand by inactive.

Section 5 provides that any perpetrator of the lynching shall be guilty of a felony and subject to a fine not exceeding $10,000, or imprisonment not exceeding 20 years, or both.

Section 6 of my bill provides that any State officer who fails to make all diligent efforts to prevent a lynching, where under the State law he has a duty to protect all persons and their property from violence, shall be guilty of a felony and shall be punished by a fine not exceeding $5,000 or by imprisonment not exceeding 5 years, or both.

Section 7 imposes upon the Attorney General of the United States the duty of investigating any lynching where he is informed on oath that the State has failed to protect the victims or has failed to punish the perpetrators.

Section 8 subjects the county or other governmental subdivisions of the State in which a lynching occurs, where the county has not taken all due measures to prevent it, to civil damages in the sum of not less than $2,000 and not more than $10,000 as monetary compensation for the lynching to the victim or his next of kin.

Section 9 renders perpetrators of a lynching who carry their victim across State lines subject to prosecution under the Lindbergh Kidnapping Act.

Section 10 contains the usual severability clause so that if any provision of the statute should be held unconstitutional the rest of the statute would not be affected thereby.

Section 11 provides that this act may be generally referred to as the "Federal Anti-Lynching Act."

Before turning to the constitutional basis for the legislation which I propose, I desire to explain why I urge this committee to report my bill rather than the Hawkes antilynching bill. S. 1352 contains all of the provisions of the Hawkes bill, but goes much further and is therefore a more effective bill. The Hawkes bill is essentially the same as the Dyer antilynching bill which was pending before Congress almost continually during the 1920's and 1930's. At that time it had the earnest support of all forces desiring a Federal antilynching act. However, the pattern of lynchings has changed so materially in recent years that I believe enactment of the Hawkes bill would be largely an idle gesture.

The Hawkes bill punishes only State officials or State subdivisions. Under it individuals who participate in lynchings cannot be punished unless they are police officers. At the time the Dyer bill was drafted and urged upon Congress almost all lynchings involved the open and notorious participation of local police officers-the county sheriff or constable. In the past 10 years, however, in the majority of lynchings, evidence of active, open participation by police officers has been hard to obtain. No one doubts that the State police machinery is acquiescent in almost every instance in which a lynching is perpetrated. But today the active, open participants usually do not include the police officers. While I, of course, believe every police officer who in any way participates or facilitates a lynching should be liable to just as full an extent as anyone else, I urge this Congress not to enact a bill that reaches only the lynching by a police officer and leaves unpunished all other lynchers.

CONSTITUTIONAL BASIS

It is my firm conviction that my proposed legislation is entirely constitutional in every respect. I believe that every provision in the bill is fully authorized by the due-process and equal-protection clauses of the fourteenth amendment. I believe that every provision of my bill is independently authorized and sup