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protection guaranteed to persons within the jurisdictions of the several States, or to citizens of the United States, by the Constitution of the United States, may be secured, the provisions of this Act are enacted.
Sec. 3. (a) Any officer or employee of any State or governmental subdivision thereof who is charged with the duty or who possesses the power or authority as such officer or employee to protect the life or person of any individual injured or put to death by any mob or riotous assemblage or any officer or employee of any State or governmental subdivision thereof having any such individual in his custody, who fails, neglects, or refuses to make all diligent efforts to protect such individual from being so injured or being put to death or any officer or employee of any State or governmental subdivision thereof charged with the duty of apprehending, keeping in custody, or prosecuting any person participating in such mob or riotous assemblage who fails, neglects, or refuses to make all diligent efforts to perform his duty in apprehending, keeping in custody, or prosecuting to final judgment under the laws of such State all persons so participating, shall be guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding $5,000 or by imprisonment not exceeding five years, or by both such fine and imprisonment.
(b) Any officer or employee of any State or governmental subdivision thereof, acting as such officer or employee under authority of State law, having in his custody or control a prisoner, who shall conspire, combine, or confederate with any person who is a member of a mob or riotous assemblage to injure or put such prisoner to death without authority of law, or who shall conspire, combine, or confederate with any person to suffer such prisoner to be taken or obtained from his custody or control to be injured or put to death by a mob or riotous assemblage shall be guilty of a felony, and those who so conspire, combine, or confederate with such officer or employee shall likewise be guilty of a felony. On conviction the parties participating therein shall be punished by imprisonment of not less than five years nor more than twenty-five years.
Sec. 4. The District Court of the United States judicial district wherein the person is injured or put to death by a mob or riotous assemblage shall have jurisdiction to try and to punish, in accordance with the laws of the State where the injury is inflicted or the homicide is committed, any and all persons who participate therein: Provided, That it is first made to appear to such court (1) that the officers of the State charged with the duty of apprehending, prosecuting, and punishing such offenders under the laws of the State shall have failed, neglected, or refused to apprehend, prosecute, or punish such offenders; or (2) that the jurors obtainable for service in the State court having jurisdiction of the offense are so strongly opposed to such punishment that there is probability that those guilty of the offense will not be punished in such State court. A failure for more than thirty days after the commission of such an offense to apprehend or to indict the persons guilty thereof, or a failure diligently to prosecute such persons, shall be sufficient to constitute prima facie evidence of the failure, neglect, or refusal described in the above proviso.
Sec. 5. Any county in which a person is seriously injured or put to death by a mob or riotous assemblage by reason of the fact that the officers of the State charged with the duty of apprehending, prosecuting, and punishing offienders under the laws of the State shall have failed, neglected, or refused to perform the duties prescribed in Section 3 of this Act shall be liable to the injured person or the legal representatives of such persons, or the estate of such deceased person for a sum of not less than $2,000 nor more than $10,000 as liquidated damages, which sum may be recovered in a civil action against such county in the United States District Court of the judicial district wherein such person is put to the injury or death. Such action shall be brought and prosecuted by the United States district attorney of the district in the United States District Court for such district. If such amount awarded be not paid upon recovery of a judgment therefor, such court shall have jurisdiction to enforce payment thereof by levy of execution upon any property of the county, or may otherwise compel payment thereof by mandamus or other appropriate process; and any officer of such county or other person who disobeys or fails to comply with any lawful order of the court in the premr.ises shall be liable to punishment as for contempt and to any other penalty provided by law therefor. The amount recovered shall be exempt from all claims by creditors of such injured or deceased person, or the legal representatives of such injured person or of the estate of such deceased person. The amount recovered upon such judgment shall be paid to the injured person, or where death resulted, distributed in accordance with the laws governing the distribution of an intestate decedent's assets then in effect in the State wherein such death occurred.
Sec. 6. In the event that any person so injured or put to death shall have been transported by such mob or riotous assemblage from one county to another county or counties during the time intervening between his seizure and injury or putting to death, the county in which he is seized and the county in which he is injured or put to death shall be jointly and severally liable to pay the forfeiture herein provided, and action shall be brought and prosecuted by the United States district attorney of any district wherein any such county is located. Any district judge of the United States District Court of the judicial district wherein any suit or prosecution is instituted under the provisions of this Act may by order direct that such suit or prosecution be tried in any place in such district as he may designate in such order.
Sec. 7. If any provision, sentence, or clause of this Act or the application thereof to any person or circumstances, is held invalid, the remainder of this Act, and the application of such provision to other persons or circumstances, shall not be affected thereby.
The committee, during the Seventy-third Congress and during the Seventy-fourth Congress, has given much consideration to this bill. Hearings were held by a subcommittee at which evidence was presented demonstrating to the committee's satisfaction the continuing and increasing need for Federal legislation of this character. When a measure similar to the pending reported bill was before Congress in 1934 and its enactment into law appeared to be more than a possibility, two lynchings occurred in January 1934, a month prior to the public hearings conducted by this committee. During the months from January 30 to June 8, 1934, when public opinion in favor of legislation to curb the practice of lynching was particularly articulate, no lynchings occurred. During the first week in June 1934, word was generally circulated that hope for the enactment of the proposed measure had been abandoned. On June 8 there was a lynching in Mississippi, followed in rapid succession by 2 lynchings in Alabama, 1 in Texas, 1 in Tennessee, 1 in Louisiana, a third in Mississippi, a third in Alabama, 1 in Georgia, and 1 in Florida. By March 13, 1935, 3 lynchings occurred. In the committee's opinion it is more than a coincidence that the practice of lynching is practically stopped when Federal legislation designed to curb this practice is pending in Congress. A continuation of the practice of lynching, coupled with a complete failure of the government of those States involved to apprehend and punish the participators of these crimes, supports the need for Federal legislation.
In the Sixty-seventh Congress a bill (H. R. 13) having similar purposes to the pending measure was passed by the House of Representatives, but was not allowed to reach a vote in the Senate. At that time the constitutionality of this legislation was discussed in much detail. The committee has had the benefit of briefs submitted at that time in support of the so-called "Dyer bill" by attorneys of national reputation. Favorable reports of the Judiciary Committees of the House of Representatives and the Senate arrived at the conclusion that the legislation was clearly constitutional. Numerous court decisions were cited in support of this conclusion. For the information of the Senate, a brief supporting the constitutionality of the measure as introduced in the Seventy-third Congress, submitted to the committee by Mr. Charles H. Tuttle, an eminent attorney of New York City, is reprinted in part.
BRIEF OF CHARLES H. TUTTLE IN SUPPORT OF THE CONSTITUTIONALITY OF THE
COSTIGAN-WAGNER ANTILYNCHING BILL The horrifying lynchings which occurred in a number of States near the end of last year and in which both white men and black were murdered by the mob have been eloquent proof that this form of primitive savagery is not on the decline and that both in its manifestation and consequence it is a matter not only of concern to the individual States but a great peril to the Nation as a whole.
These are days when the bulwarks of government must be strengthened and when the danger of mob rule anywhere in our land must be regarded as a national menace.
Unless respect and reverence for our orderly institutions of constitutional government are preserved in the minds of our people, the end may quite conceivably be national dissolution. Judgment by mob and trial by fury will not pause at the hair line of any nice distinctions. Once proclaim that the bitterness of public indignation has justification for replacing the processes of law and of constitutional government with the violence of the lowest passions, and the whirlwind will speedily be the reaping from this sowing of the wind.
Furthermore, there is national danger, particularly in these times, in causing large sections of our population to believe that they are outside the effective protection of government and in thus loosening their attachment to our institutions.
That nation is hardly worthy of the name which does not protect its own citizens. In large groups of our population there is bitter irony in the contrast between the strength and determination with which our National Government defends the rights of American citizens in foreign lands and its complete impotence in the matter of defending the same citizens against the consequences of mob rule within its own borders.
Moreover, these outbursts of primitive savagery, so often centering in racial passions, have obviously tended to lessen the respect in which our institutions are held abroad and have not infrequently embarrassed us as a Nation in our protests against racial injustice and persecution in other lands. These all too frequent lynchings, taken together with our spectacular gang warfares and murders, are commonly cited in the foreign press as proof of ineffective government and of a spirit of lawlessness in America.
The time, therefore, has come when the Nation should defend itself against this national evil which has assumed colossal proportions. Whatever our views of States' rights may be, we must recognize that under present-day conditions in the solution of national questions, State boundaries are becoming less distinct. This change is due to social development, to science and invention, and rests upon the closer relations of trade and amity which exist between communities. More and more the national resources are called upon for the making of local improvements within the several States and for the relief of their population from economic and physical distress. Hardly, therefore, does it seem fair that where the National Government is, on the solicitation of State and local communities, making ever-increasing investment among them, they should deny to the National Government an interest and a voice in preventing in their own midst recurrences of mob insurrection which destroy the security of the national investment and which undermine the strength of the national credit and of the national institutions.
Surely, nothing in our National Constitution prevents our National Government from undertaking such an act of self-preservation and from protecting itself against the consequences of the break-down of due process of law through State inaction and of wholesale discrimination in the effective protection of the laws through the tyrannies of mob rule.
The power thus to protect the Nation against internal national dangers of this character were expressly conferred upon Congress by the United States Constitution.
Section 4 of article IV of the Federal Constitution declares:
“The United States shall guarantee to every State in this Union a republican form of government.'
Section 1 of article XIV (fourteenth amendment), declares:
"All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside.
Nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Section 5 of article XIV (fourteenth amendment) declares:
“The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."
These sections deserve a liberal interpretation in favor of the rights which they were designed to protect.
In Strauder v. West Virginia (100 U. S. 303) the Supreme Court said (p. 307):
“If this is the spirit and meaning of the amendment (fourteenth amendment), whether it means more or not, it is to be construed liberally to carry out the purposes of its framers."
The same decision declares that in consequence, while the precise words of the amendment are prohibitory, they imply, and by implication confer, positive immunities and rights which cannot lawfully be invaded by the prohibited acts. To quote (p. 307):
"The words of the amendment (fourteenth amendment), it is true, are prohibitory, but they contain the necessary implication of a positive immunity, or right, most valuable to the colored race—the right to exemption from unfriendly legislation against them distinctly as colored-exemption from legal discriminations, implying inferiority in civil society, lessening the security of their enjoyment of the rights which others enjoy, and discriminations which are steps toward reducing them to the condition of a subject race.”
By necessary implication, as well as by the express mandate of the fifth section of the fourteenth amendment, Congress has not only the power but the duty to protect the rights conferred or guaranteed by the Federal Constitution either by express declaration or by implication. The Supreme Court has uniformly held that the National Government has the power, whether expressly given or not, to secure and protect the rights conferred and guaranteed by the Constitution. (U. S. v. Reese, 92 U. S. 214; Strauder v. West Virginia, 100 U. S. 303).
The Supreme Court has accepted as essential to the national supremacy the necessary doctrine that Congress, in the absence of a positive delegation of powers to the State legislatures, may, by its own legislation, enforce and protect any rights derived from or created by the National Constitution. It was so declared in Prigg v. Commonwealth of Pennsylvania (16 Pet. (U. S.) 539), where Mr. Justice Story, speaking for the Court, laid down these propositions:
“That a clause in the Constitution conferring a right should not be so construed as to make it shadowy, or unsubstantial, or leave the citizen without a remedial power adequate for its protection, when another construction equally accordant with the words and the sense in which they were used would enforce and protect the right granted.
“That Congress is not restricted to legislation for the execution of its expressly granted powers; but, for the protection of rights guaranteed by the Constitution, may employ such means, not prohibited, as are necessary and proper, or such as are appropriate, to attain the ends proposed."
In United States v. Reese (92 U. S. 214), it was said by Chief Justice Waite (p. 217):
“Rights and immunities created by or dependent upon the Constitution of the United States can be protected by Congress. The form and the manner of the protection may be such as Congress in the legitimate exercise of its legislative discretion shall provide. These may be varied to meet the necessities of the particular right to be protected.”
Furthermore, the protection which these sections of the Federal Constitution throw around the rights which they guarantee is a protection not only against their violations by a State acting in its corporate capacity, but also against their violation by individuals acting in any official capacity derived, directly or indirectly, from the State. In consequence, any ministerial, executive, legislative, or judicial officer, deriving his authority, directly or indirectly, from a State, who invades any of these guaranteed rights is acting unlawfully; and Congress has the power to enact proper legislation to protect these rights from any such invasion.
As said in Ex parte Virginia (100 U. S. 339), at page 347:
“A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as lie acts in the name and for the State, and is clothed with
the State's power, his act is that of the State. This must be so, or the constitutional prohibition has no meaning. Then the State has clothed one of its agents with power to annul or to evade it."
In Home Telephone & Telegraph Co. v. City of Los Angeles (227 U. S. 278), the Supreme Court, through Mr. Chief Justice White, said (p. 286):
“The provisions of the amendment as conclusively fixed by previous decisions are generic in their terms, are addressed, of course, to the States, but also to every person whether natural or judicial who is the respository of State power. By this construction the reach of the amendment is shown to be coextensive with
any exercise by a Sate of power, in whatever form exerted." In Virginia v. Rives (100 U.S. 313), it was said (p. 318):
“It is doubtless true that a State may act through different agencies, either by its legislative, its executive, or its judicial authorities; and the prohibitions of the amendment extend to all action of the State denying equal protection of the laws, whether it be action by one of these agencies or by another. Congress by virtue of the fifth section of the fourteenth amendment, may enforce the prohibitions whenever they are disregarded by either the legislative, the executive, or the judicial department of the State. The mode of enforcement is left to its discretion. It may secure the right—that is, enforce its recognitionby removing the case from a State court in which it is denied into a Federal court where it will be acknowledged."
In Raymond v. Traction Co. (Ž07 U. S. 20), the Supreme Court said (p. 36):
“The provisions of the fourteenth amendment are not confined to the action of the State through its legislature, or through the executive or judicial authority. Those provisions relate to and cover all the instrumentalities by which the State acts, and so it has been held that whoever, by virtue of public position under a State government, deprives another of any right protected by the amendment against deprivation by the State violates the constitutional inhibition; and as he acts in the name of the State and for the State, and is clothed with the State's powers, his act is that of the State."
For the same reason the prohibitions of the fourteenth amendment apply to local officers as well as to State-wide officers, for officers of counties, States, or other local subdivisions of government are in the ultimate analysis the repository of the power of the State. Hence, in Home Telephone & Telegraph Co. v. City of Los Angeles (227 U. S. 278), it was held that acts done by a local officer under the authority of a municipal ordinance passed by virtue of power conferred by the State are embraced by the fourteenth amendment. The Supreme Court said that the exercise of municipal authority is the exertion of State power within the purview of the fourteenth amendment (p. 295).
So likewise in Yick Wo v. Hopkins (118 U. S. 356), it was held that a municipal ordinance to regulate the carrying on of public laundries within the limits of the city of San Francisco, which conferred purely arbitrary power upon the municipal authorities to give or withhold consent, was violative of the fourteenth amendment. The Court said that the principles of the fourteenth amendment are to be freely extended to the quasi-legislative acts of interior municipal bodies (p. 371).
Indeed, the Supreme Court has applied the fourteenth amendment to mere matters of administration by local officials even though the municipal or State law under which they were acting contained in itself no arbitrary discriminations and no denials of due process or the equal protection of the laws.
In Tarrance v. Florida (188 U. S. 519), Mr. Justice Brewer, speaking for the Supreme Court, said (p. 520):
"The contention of plaintiffs in error is that they were denied the equal protection of the laws by reason of an actual discrimination against their race. The law of the State is not challenged but its administration is complained of.
"Such an actual discrimination is as potential in creating a denial of equality of rights as a discrimination made by law.”
Again in Yick Wo v. Hopkins (118 U. S. 356), an ordinance of the city of San Francisco, which made it unlawful to maintain laundries without first having obtained the consent of the board of supervisors, was so administered that Chinamen were denied the right to maintain laundries solely because of their race and nationality. In holding that this administration of the ordinance was violative of the fourteenth amendment the Supreme Court said (p. 373):
“The facts shown establish an administration directed so exclusively against a particular class of persons as to warrant and require the conclusion that whatever may have been the intent of the ordinaaces as adopted, they are