Digital
History>eXplorations>Lynching>Anti-Lynching
Legislation of the 1920s>General Daughtery's Letter
to A.J. Volstead
Attorney General H. M. Daughtery's Letter to A. J. Volstead
August 9, 1921
Source:
NAACP Papers, Library of Congress
While
under the statutes governing my office I am not authorized to
give an official opinion to your committee relative to the bill,
my interest in securing to persons within the jurisdiction of
every State the equal protection of the laws, especially with
reference to lynching, is so great that I feel warranted in submitting
to you as my personal and not official opinion certain thoughts
which have occurred to me as the result of a somewhat hasty examination
of the bill.
As
pointed out by Col. Goff in his statement before your committee,
the first seven sections, providing for the removal of cases under
certain conditions to the Federal courts, and providing for the
punishment of persons obstructing or resisting officers of the
United States, are in effect but elaborations of existing law.
They appear to be well drafted and within the competency of Congress
to enact. Considerable discussion has taken place as to the constitutionality
of the proposed legislation, it being contended that the fourteenth
amendment gave Congress power to legislate so as to prevent a
denial of the equal protection of the laws by the States and not
as acts of individuals not clothed with State authority. In support
of this proposition the following cases have been cited: United
States v. Cruikshank (92 U. S., 542); Virginia v. Rives (100 U.
S., 313); Ex Parte Virginia (100 U. S., 339); Civil Rights Cases
(109 U. S., 3); United States v. Harris (203 U. S., 1); James
v. Bowman (190 U. S., 127); Hodges v. United States (203 U. S.,
1); United States v. Wheeler (245 U. S., 281). Col. Goff has very
thoroughly gone over this question in his statement before your
committee, and I heartily concur in the views he there expressed.
It will be observed that in the cases above cited the court hold
that the state may act through its legislative, its judicial,
or its executive authorities, and the act of any one of these
is the act of the State. This is concisely set forth in the opinion
of the court in Ex Parte Virginia (100 U. S., 339, at 346).
…Section
10 imposes a penalty upon every county in which an unlawful killing
occurs, and section 11 imposes a like penalty on every county
through which the victim may be carried before being put to death.
While the question whether the United States may penalize and
instrumentality of a subdivision of a State may cause some doubt,
it is at least an open one so far as the decisions of the Supreme
Court are concerned. There has been conferred on Congress the
power by appropriate legislation to enforce the prohibitions of
the fourteenth amendment and the imposition of penalties is a
well-established means of enforcing the laws, and is so recognized
by numerous decisions of all courts and is no doubt an appropriate
method of so enforcing the law.
This
being true and the States having consented by their adoption of
the provisions of the Constitution and its amendments to such
enforcement of the law by the Federal Government, it would seem
there could be but little question of the power of Congress to
provide such penalties. Section 12 and section 13 provide for
the punishment of State and municipal officers who fail in their
duty to prevent lynchings or who suffer persons accused of crime
to be taken from their custody for the purpose of lynching. These
sections seem to me to strike at the heart of the evil, namely,
the failure of State officers to perform their duty in such cases.
The fourteenth amendment recognizes as pre-existing the right
to due process of law and to the equal protection of the law and
guarantees against State infringement of those rights. A State
officer charged with the protection of those rights who fails
or refuses to do all in his power to protect the accused person
against mob action denies to such person due process of law and
the equal protection of the laws in every sense of the term. The
right of Congress to do this is fully sustained by the decision
of the court in Ex Parte Virginia, supra. (See pp. 346, 347.)
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