The total white population of the United States is 134,942,028, or almost 135 million. The total Negro population is 15,042,286, or roughly, 15 million, or approximately 11 percent. However, according to a report 2 released recently by the FBI, approximately 29 percent of all arrests made during 1955 in cities of over 2,500 population were of Negroes. In the field of arrests for crimes of violence, the percentage of Negro arrests was even greater, being approximately 42 percent of all arrests for rape, over 63 percent for narcotic-drug violations, approximately 63 percent for aggravated assaults, and almost 60 percent for murders and nonnegligent homicides.

Although Negroes comprise 30.8 percent of the population of Georgia, there are 4,724 Negroes in the Georgia penal system as compared to only 3,065 whites.

Notwithstanding the foregoing statistics, indicating a great disparity between the number of Negro law violators as compared to the percentage of Negro population, no one has even remotely suggested the need for Federal legislation to protect the white people against the disproportionate number of Negro criminals.

Although there are very few reported crimes of violence committed by whites against Negroes in Fulton County, Georgia's most populous county, hardly a day goes by without some report of a white person being raped, robbed, assaulted, or murdered by a Negro in the Atlanta area, and yet here again, in spite of this deprivation of the most fundamental of all civil rights, the right to protection against personal violence, we are nevertheless confident that the State can adequately protect the rights of all, in keeping with repeated holdings of the Supreme Court that it is the States who are the primary guarantors of all civil rights under our form of government.

In 1955 there were 65 murders committed by Negroes as compared to only 14 by white persons; 29 rapes by Negroes as compared to 8 for whites; 574 aggravated assaults by Negroes as compared to 181 for whites, and 77 robberies by Negroes as compared to 56 by whites.

On the other hand, no one seems to dispute the fact that the number of so-called lynchings and incidents of mob violence are now at an alltime low, and continue on a course of steady decrease.

5

When Attorney General Brownell appeared before the Judiciary Committee of the House on April 10, 1952, he referred to the fact that there had been no lynchings since 1951, and that Tuskegee Institute had recorded a steady decline year by year. The lack of need for such legislation was further illustrated in the failure of all Government agencies to appear and testify in response to invitation. The lone agency which did apear, the Housing and Home Finance Agency, appeared not to testify for any of the bills, but rather to caution against legislation aimed at discrimination in housing which might upset the mortgage market."

In Georgia, my office has not hesitated to take quick action to protect all citizens against lawlessness. Several years ago, we revoked the charters of the Ku Klux Klan and another organization which

2 Uniform Crime Reports, No. 2, p. 117, released by the FBI on April 30, 1956.

3 Annual Report of the Georgia State Board of Corrections, covering period from July 1, 1954, through June 30, 1955, p. 50.

See 1955 Annual Report of the Atlanta Police Department, pp. 17, 19.

5 See pt. 2, p. 24 of transcript of hearing.

See transcript of hearings before Subcommittee No. 2, July 13, 14, and 27, 1955, p. 181. 7 Id., pp. 214-228.

styled itself the "Columbians," both of which were found to be advocating private assumption of governmental powers. The only reports of incitement to violence we have had in Georgia recently have come not from the foes of racial amalgamation, but from its proponents. In a speech delivered on February 13, 1956, at Paine College in Augusta, Ga., the chairman of an interracial committee appointed by a leftwing organization named the Southern Regional Council, whose predecessor, the now defunct Southern Conference for Human Welfare, which was years ago exposed by the House Committee on Un-American Activities as subversive, advised all Negroes in Georgia to use crowbars on the heads of white citizens in order to enforce their respect.

Moreover, the Federal courts in Georgia have functioned effectively under existing laws, and have gone further in protecting against police brutality than the United States Supreme Court was inclined to go. In Screws v. United States (325 U. S. 91, 103), decided in 1945, the Supreme Court reversed the conviction of a Georgia sheriff under the civil-rights statute who had needlessly killed a Negro prisoner while making an arrest. Although the Court of Appeals for the Fifth Circuit had upheld the conviction, the Supreme Court held that the only way the statute (now 18 U. S. C. A. 242, making penal any deprivation of due process under color of law) could be held valid as against assertions of unconstitutional vagueness, was by requiring a jury finding that the defendants acted with the specific intent of depriving the victim of a Federal right, regardless of the existence of a general evil intent or purpose. It goes without saying that this decision was based on constitutional grounds and I am sure no one would ever advocate that in a suicidal endeavor to secure due process to one person, an accused be denied due process by being subjected to the vagaries of judicial construction as to whether the acts charged against him violated "due process." In other words, criminal statutes should not go too far in dispensing with the mens rea requirement particularly where the offense is based on such a continual expanding concept as due process, as to which even the courts are in dispute.

Within the past year or so, a Federal district judge in the middle district of Georgia has in effect held that the requirement of specific intent enunciated in the Screws case does not apply in a civil action for injunction under title 42, United States Code Annotated, section 1985 (3), which was brought complaining of an erroneous interpretation by the registrars of the State voters registration law which resulted in some voters being deprived of the right to exercise their franchise. The court simply excluded good faith as a defense. I think it is also not without significance that the multitude of these civil-rights proposals are systematically ignored for long periods and then suddenly resurrected with unerring faithfulness during election years, apparently in a mad scramble to corral the minority bloc vote. This fact alone is sufficient to indicate that the majority of Congress realizes there is no need for such legislation, but on the contrary, is tacit recognition of the existence of blocs and pressure groups which are concerned only with their self-interests, and have no respect for

See Opinions Attorney General of Georgia, 1945-47, p. XIX.

See Thornton v. Martin, civil action No. 520, filed August 1954, middle district of Georgia, Macon, Ga.

the dual system of government conceived by the Founding Fathers and which is largely responsible for the freedoms we now enjoy.

That all of this election year agitation is politically inspired is further evidence by recent newspaper reports that the public relations director of Citizens for Eisenhower has announced their strategy to be exploitation of the race issue during the coming campaign. The Supreme Court decision on segregation in the public schools has already set us back 50 years in race relations, and I earnestly and respectfully urge this body and all political candidates not to take any action that would further impair the excellent understanding that has prevailed between the two races in the South for so long and is now being seriously threatened.

Turning now to the proposed legislation, S. 900, the so-called antilynching bill is so revolutionary and contrary to our established Federal-State scheme of government that I for one marvel that anyone would propose such a measure. Briefly, section 5 of this bill defines a lynching as action by two or more persons in committing or attempting to commit violence upon any person because of his race, religion, or color, or secondly, the exercising or attempting to exercise by two or more persons of the power of punishment for crime against any person held in custody on charges or after conviction. It is to be noted that this new version of the antilynch statute, unlike some of its predecessors, does not contain the express exemption as to violence arising out of labor disputes, but is carefully phrased in such a subtle manner as to accomplish the same objective without language which would be apparent to the casual reader. It is hypocritical, to say the least, for the labor union leaders who have so vigorously advocated this legislation to completely ignore their own problem and secure exemption from the bill's coverage. Murder committed against innocent people trying to make a living for themselves during a labor dispute is no less despicable than murder committed because of one's race, and it is only necessary to read the daily newspapers to perceive which occurs most frequently.

Under the wording of this bill, where a member of a minority commits violence against a member of the majority race, such action would merely constitute assault and battery under State law, but if a member of the majority similarly violated the rights of a member of the minority, it would ipso facto rise to the level of a Federal offense, and the accused could be punished not only under Federal law, but also in State courts. For committing identical acts, the white man would be tried in two courts and given two prison sentences whereas the Negro would be tried only in State court and receive only one. This bill does not guarantee equal protection—it assures unequal pro

tection.

But this is only a milder feature of this radical proposal. Provision is made whereby any aggrieved person can sue for damages not only the police officers-State or Federal-who it is alleged failed to take necessary action to afford protection, but the municipality, State, and United States as well.

Under the pretense of vindicating the Constitution, the sponsors of S. 900 would justify legislative defiance of the 11th amendment's commands that suit may not be brought in Federal court against a State without its prior consent. As early as 1828 it was settled that an action to recover money from a State treasury is a suit against the

Even so vigorous a proponent of civil rights as Mr. Justice Douglas, writing for the majority in Screws v. United States ((1945) 325 Ŭ. S. 91, 89 L. Ed. 1495, 65 S. Ct. 1031), held that—

The fact that a prisoner is assaulted, injured, or even murdered by State officials does not necessarily mean that he is deprived of any right protected or secured by the Constitution, or laws of the United States.

It is therefore clear beyond all question that S. 900 cannot be sustained under the 14th amendment as a due-process or equal-protection It only remains to be seen whether the bill could be upheld as an exercise by Congress of its powers to protect federally secured rights.

measure.

In United States v. Cruikshank ((1876) 92 U. S. 542, 23 L. Ed. 588) it was said:

We have in our political system a Government of the United States and a government of each of the several States. Each one of these governments is distinct from the others, and each has ctiizens of its own who owe it allegiance, and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of these governments will be different from those he has under the other.

The Government of the United States is one of delegated powers alone. Its authority is defined and limited by the Constitution. All powers not granted to it by that instrument are reserved to the States or the people. No rights can be acquired under the Constitution or laws of the United States, except such as the Government of the United States has the authority to grant or secure. All that cannot be so granted or secured are left under the protection of the States.

In the Slaughter House cases ((1873) 16 Wall. 36, 21 L. Ed. 394), which was the first decision construing the 14th amendment, it was beld that the amendment's reference to "privileges and immunities of citizens of the United States" only operated as a prohibition against State encroachment on rights and privileges which devolved upon a citizen by virtue of his status as a citizen of the United States, as distinguished from his status as a citizen of the State. In so holding, the Court declared:

Of the privileges and immunities of the citizens of the United States, and of the privileges and immunities of the citizens of the State, and what they respectively are, we will presently consider; but we wish to state here that it is only the former which are placed by this clause under the protection of the Federal Constitution, and that the latter, whatever they may be, are not intended to have any additional protection by this paragraph of the amendment.

Moreover, it was determined that it was not the intention of Congress in submitting, and the intention of the people in ratifying, "to transfer the security and protection of all the civil rights which we have mentioned from the States to the Federal Government" (id., 21 L. Ed at p. 409). As stated by the Court:

But, however, pervading this sentiment, and however it may have contributed to the adoption of the amendments we have been considering, we do not see in those amendments any purpose to destroy the main features of the general system. Under the pressure of all the excited feeling growing out of the war, our statesmen have still believed that the existence of the States with power for domestic and local government, including the regulation of civil rights, the rights of person and of property, was essential to the perfect working of our

1875 (18 Stat. at L. 335) which made it a Federal offense for any person to deprive any other person of equal accommodations in inns, public conveyances, and theaters, the indictment alleging that defendants had refused certain Negroes, because of their race, admission to an inn and theater.

In holding the statute unconstitutional as exceeding the powers of Congress under the 14th amendment, it was said:

It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment.

な

It does not invest Congress with power to legislate upon subjects which are within the domain of State legislation; but to provide modes of relief against State legislation or State action, of the kind referred to. It does not authorize Congress to create a code of municipal law for the regulation of private rights; but to provide modes of redress against the operation of State laws, and the action of State officers * * * (id., p. 11).

*

In this connection it is proper to state that civil rights, such as are guaranteed by the Constitution against State aggression (due process and equal protection), cannot be impaired by the wrongful acts of individuals, unsupported by State authority in the shape of laws, customs, or judicial or executive proceedings. The wrongful act of an individual, unsupported by any such authority, is simply a private wrong, or a crime of that individual; an invasion of the rights of the injured party, it is true, whether they affect his person, his property or his reputation; but if not sanctioned in some way by the State, or not done under State authority, his rights remain in full force, and may presumably be vindicated by resort to the laws of the State for redress * * *

In United States v. Harris ((1883) 106 U. S. 629, 27 L. Ed. 290, 1 S. Ct. 601) section 5519 of the Revised Statutes was before the Court for consideration. This section declared it a crime for two or more persons to conspire to deprive any person or class of person of the equal protection of the laws. Its language, as pointed out recently by the Supreme Court in Collins v. Hardyman ((1951) 341 U. S. 651, 657, 95 L. Ed. 1253, 1257, 71 S. Ct. 937), is indistinguishable from a civil provision now known as title 42, United States Code Annotated, section 1985 (3).

In the Harris case, the defendants were charged under the penal provision, to wit, section 5519, with having assaulted and beaten several prisoners who were being held in custody of State police officers. The Supreme Court held the statute unconstitutional in that it was— not limited to take effect only in case the State shall abridge the privileges or immunities of citizens of the United States, or deprive any person of life, liberty or property without due process of law.

As recently as 1948, in Shelley v. Kraemer (334 U. S. 1, 13, 92 L. Ed. 1161, 1180, 68 S. Ct. 836), the Supreme Court declared with respect to the scope of the 14th amendment:

Since the decision of this Court in the Civil Rights cases (109 U. S. 3, 27 L. Ed. 835, 3 S. Ct. 18 (1883)) the principle has become firmly embedded in our constitutional law that the action inhibited by the first section of the 14th amendment is only such action as may fairly be said to be that of the States. That amendment erects no shield against merely private conduct, however discriminatory or wrongful,