As to the lynching of a soldier or sailor the committee seemed surprised to be told that no Federal statute has been found in point. The part of the bill concerning the lynching of a Federal prisoner was not discussed at the hearing. But the final request of the chairman

was:

I hope you will devote your argument to the question as to whether we have the right to make it a crime against the Federal Government for somebody to kill the kinsman of a Federal soldier inside of a State and away from a military reservation.

This brief, therefore, will be confined to a discussion of the proposition that the Constitution authorizes a Federal statute punishing, in time of war, the lynching of a potential soldier or the dependent relative of a soldier.

1. THE UNDERLYING PRINCIPLES.

Constitutional support for this bill is to be found in the clauses granting to Congress power" to declare war, to raise and support armies, to make all laws which shall be necessary and proper for carrying into execution the foregoing powers sec. 8, cls. 11, 12, and 18).

* *

(Art. I,

Doubtless support could also be found in the fourteenth amendment and the doctrine of the "peace of the United States," so ably discussed by Representative Dyer in explaining his bill (H. R. 11279) on May 7, when, after quoting Attorney General Gregory to the effect that lynching "is a deplorable thing under any circumstances, but at this time above all others it creates an extremely dangerous condition." Mr. Dyer said:

The early theory that the United States has no police power, so-called, or power to protect life or punish crimes of violence within the States, is already superseded by judicial decision. It is now determined by the highest authority that the United States has such power when a Federal right or duty is invaded or involved. The principle is neither new nor startling, though modern applications of it have attracted attention. For example, it is now held that the United States, by the hand of its marshal, may lawfully kill one who assaults a Federal judge traveling through a State in the course of his duty, and that the State can not hold the marshal to account for such killing (in re Neagle, 135 U. S., 1); and that the United States may punish as for murder one who kills a prisoner in the custody of a Federal officer within a State (Logan v. United States, 144 U. S., 263). The principle is that the persons so assailed are within the peace of the United States; that the United States owes them the duty of protection; and that the power of protection follows upon the duty. The Dyer bill, however, involves a large question of permanent public policy, with which the military can have no concern. The substitute bill now proposed originated from war necessities and is limited to war times. We prefer, therefore, to discuss it only as a measure under the war powers of Congress.

The wide scope of these powers is ably pointed out in a report of the present Judiciary Committee of the House of Representatives, submitted by Chairman Webb on October 2, 1917, to accompany H. R. 6361 (H. Rept. No. 181, 65th Cong., 1st sess.). On pages 10 to 12 and 16 and 17:

The committee, however, is satisfied that the Government, within the Constitution, has all the powers granted to it which are necessary to preserve its existence.

Turning, first, to the words of the framers of the Constitution, we find the necessity for this broad power thus expressed by its most powerful spokesman, Alexander Hamilton:

66

The authorities essential to the common defense are these: To raise armies; to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their support. These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies or the corresponding extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed. This power ought to be coextensive with all the possible combinations of such circumstances, and ought to be under the direction of the same councils which are appointed to preside over the common defense."

This power must be interpreted, like all other powers under the Constitution, in the light of the classical principle of construction laid down in the opinion of Chief Justice Marshall (McCullough v. Maryland, 4 Wheat., 416) that Congress is to be allowed that discretion in relation to the powers conferred upon it which will enable it to perform its duties "in the manner most beneficial to the people," and that the end being legitimate and within the scope of the Constitution, "all means which are appropriate, which are plainly adapted to that end, and which are not prohibited but consistent with the letter and spirit of the Constituion, are consitutional."

In Miller v. United States (11 Wall., 260), a case decided in 1870, involving the constitutionality of the Federal confiscation acts as applied to enemy property found in a loyal State, the court, in answer to the suggestion that the power was unconstitutional, used the following language:

66

The question, therefore, is whether the action of Congress was a legitimate exercise of the war power. The Constitution confers upon Congress expressly power to declare war, grant letters of marque and reprisal, and make rules respecting captures on land and water. Upon the exercise of these powers no restrictions are imposed. Of course the power to declare war involves the power to prosecute it by all means and in any manner in which war may be legitimately prosecuted." (11 Wall., 304.)

So far both majority and minority agreed.

Surely the Federal Congress, in the prosecution of the war, may not only conscript the life of the citizen, but may, under the guarded discretion of the judges of the land as proposed in this measure, interfere with the property of the individual to the extent that such interference has been countenanced in this act for a purpose directly relating to the conduct of the war and the preservation of the morale and self-respect and the peace of mind of the citizen soldier whose body has been conscripted and taken from the peaceful walks of business life.

Officers of the Military Intelligence Branch are in a position peculiarly adapted to appreciate the soundness of Hamilton's dictum. "The circumstances that endanger the safety of nations are infinite." Secret machinations by German agents and subtle propaganda among large groups of our population have created unprecedented circumstances at the present time. In the only previous war, under the Constitution, which was serious enough to call for the drafting of the manhood of the Nation-the War of 1861-1865-our Federal Government was opposed by honorable belligerents, who fought fairly and above board. Hence there was no necessity for such exercise of the Federal war powers as shown in several of the acts of the present Congress. Court decisions precisely in point are therefore not available. But the necessity and appropriateness of laws to protect the soldier and his family as incident to carrying into execution the powers to declare war and raise and support armies were recognized in the stay laws of Civil War times and have been recognized ever since in the pension laws.

In so far as the present draft of a bill would punish the lynching of men eligible to military duty, its relation to the war power is

mathematically self-evident. In a war recognized as ultimately turning upon comparative man power the lynching of men registered or registerable for the United States military service necessarily reduces the factor of national safety.

And in so far as the proposal covers dependent relatives, its purpose is "the preservation of the morale and self-respect and the peace of mind of the citizen soldier," which, as the above-quoted committee report implies, is a purpose "so directly relating to the conduct of the war" that no judge's decision is necessary to demonstrate its constitutionality.

II. THE ANALOGY OF THE WAR-RISK AND SOLDIERS' RIGHTS ACTS.

In its aim to discharge a moral obligation to the soldiers and assure their patriotic morale by protecting their dependent kinsmen, this bill finds full precedent in the recent war-risk insurance act (H. R. 5723, Public, No. 90, 65th Cong., approved, Oct. 6, 1917) and the soldiers and sailors' civil-rights act (H. R. 6361, Public, No. 103, 65th Cong., approved, Mar. 8, 1918).

Expressions concerning the former measure, made by eminent students of the Constitution, are strikingly in point. Let us look at the reports of the House Committee on Interstate and Foreign Commerce made to accompany H. R. 5725. In House Report No. 130 of the Sixty-fifth Congress, first session, submitted by Mr. Rayburn on August 30, 1917, we find the following, at page 3:

Your committee thinks this bill wise and beneficent in all its features, and though a radical departure in some respects, think it will prove a great blessing to our soldiers and their families and be very satisfactory to the country.

The first, second, and third features provide for the maintenance of the families of the soldiers during service and for compensation in case of death, and it is believed this is effected much more satisfactorily in this bill than in the existing pension system and will not be so expensive in the long run. The elements of certainty and security afford an incentive to the soldier to go forward, confident of protection by the Government to themselves and their families, and go far to mitigate the anguish of the families themselves during the unhappy separation from the soldiers.

Hon. W. C. ADAMSON,

TREASURY DEPARTMENT, Washington, August 24, 1917.

Chairman Committee on Interstate and Foreign Commerce. MY DEAR JUDGE ADAMSON:

*

** May I not again express my sincere and earnest conviction that no more important measure than this one is now pending in the Congress * By providing now a comprehensive measure like the present one * providing definite allowances in case of death and total or partial permanent disability, and for the support of the dependent families of the men who go to the front, so that they shall not become objects of charity while the men are away fighting for their country. We shall have told every man who enters the service of his country in advance what he may expect in every contingency, not only for his family but for himself. *** I am most grateful to you and to the members of your committee for the opportunity you have given me to express my earnest approval of this measure.

Very sincerely, yours,

W. G. MCADOO.

In part 2 of the same report. Mr. Parker, submitting the views of the minority of the committee, said (p. 1):

It is, perhaps, not yet necessary that men with families should be forced into the battle lines. But in so far as they are not exempted, some provision like Article II for compulsory allotment of pay and a family allowance is necessary to take care of these families. * * *

And in part 3, the committee's supplemental report, a letter is quoted on page 7, as follows:

MY DEAR JUDGE: May I not express to you, and through you to the Committee on Interstate and Foreign Commerce of the House, my sincere gratification at the favorable report the committee has just made on the bill granting family allowances, indemnities, and life insurance for the officers and enlisted men of the Army and Navy, and the hope that the proposed measure may receive the prompt approval of the Congress?

There are so many arguments for the bill that I do not know which to put forward as the most imperative. No doubt you have assembled them in your mind in their most effective order. But what principally appeals to me about the bill is that it takes into consideration the whole obligation of the soldier not only, but the whole obligation of the Government-the obligations of justice and humanity both to the soldier and to his family. It is one of the most desirable pieces of legislation that has been proposed in connection with the war, and I can not too earnestly urge its adoption. *

Cordially and sincerely, yours,

Hon. W. C. ADAMSON,

House of Representatives.

*

WOODROW WILSON.

And similar opinions as to the Government's obligations may be found throughout the debates on the bill. (See 55 Cong. Rec. 6753, 6815, 6890, 6963, 6988, 7030, 7038, 7070, 7104, 7681, 7736, 7737, 7764, 7836, 7837, et passion.)

So, in connection with the soldiers' and sailors' civil rights bill, H. R. 6361, now Public Law No. 103, we find repeated recognition that the power to raise armies involves as a corollary a Federal duty to protect the family of the man conscripted (or invited to volunteer) into the Army; also recognition that (as Mr. Dyer aptly puts it) "the power of protection follows upon the duty." And in two sections of that law, sections 300 (3) and 301 (1a) such protection is given by criminal provisions. From the House Judiciary Committee report of October 2, 1917 (Rept. No. 181), parts of which were quoted above, we submit the following convincing observations (pp. 1, 3, 4) :

a bill with a similar purpose, introduced by Mr. Webb

had been drafted by the office of the Judge Advocate General under the immediate supervision of Maj. John H. Wigmore, well known as the author of the authoritative work on evidence, who is now a member of that office. The preparation of the original bill occupied Maj. Wigmore and his assistants for several weeks. * ** This bill is not the work of one man, but is the product of the suggestive criticism of almost every member of the Judiciary Committee. Throughout its meetings the committee las also had the benefit of the presence of the draftsmen of the original bill, and they have cooperated with the committee in every way. The country is asking 2,000,000 of its young

*

men to risk their lives, and if need be to give up their lives for their country. Before long even more will be asked to make the same sacrifice. Is it more than naked justice to give to the savings of these same men such just measure of protection as is possible? *** The country asks the same service and should give the same protection to a soldier whether he comes from Massachusetts or California, from Maine or Louisiana. The law should be a general Federal law. * * The Federal Government has a plenary power that is denied to the States. In the war power it has been given a power upon which, in the words of the Supreme Court of the United States in Miller v. United States (reported in 11 Wall.. 268). “no restrictions are imposed. The power to declare war involves the power to prosecute by all means and in any manner in which war may be legitimately prosecuted by the law of nations." It was admitted by counsel for both sides in arguing the case, and both by the majority and minority of a divided court, that this power is supreme, and that the fifth amendment,

which in time of peace prohibits the depriving a person of property without due process of law, has no application in time of war to acts of the Federal Government germane to the war. With this decision before us it is not surprising that we should find similar expressions from such an eminent jurist as Mr. Justice Hughes and from such an authority as Eugene Wambaugh, professor of constitutional law in the Harvard Law School, and now major on the staff of the Judge Advocate General of the Army.

Can it be denied that, as Secretary Baker has said:

"The Army in France will be a more spirited and happy body of men, they will be healthier, they will be more effective as soldiers, they will be better citizens in every way, if, when they are thus forcibly separated from their homes, Congress says that no additional disadvantage shall come to them by reason of any oppressive action on the part of creditors."

It would be an unworthy reflection upon our Constitution that under it the Federal Government may send a man perhaps to his death in the trenches, but under that same Constitution is without power to hold his savings intact for him until his return.

(If the Federal Government can protect them against "oppressive action on the part of creditors," can it not protect against lawless action of murderers? If it has power to hold the soldier's "savings intact until his return," what of guarding his human possessions, for whom he made the savings?) Continuing the quotations (pp. 1012, 17):

Because of the most careful consideration the bill has received at our hands both as to its form and purpose, we unanimously report this bill not only with the reconsideration [? recommendation] that the bill do pass, but that it receive the early attention of the House.

At the outset it is well to state that this committee believes that the authority for all legislation, whether or not in the nature of war-emergency legislation, must be found within the powers granted by the Constitution of Congress. In the words of the Supreme Court in the much discussed case of Er parte Milligan (4 Wall., 2), "the Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.”

*

*

In the judgment of the committee the provisions of this bill are well within these "necessary powers." ***

Constitutional support for this bill is to be found in the granting to Congress of power "to declare war, to raise and support armies, to make all laws which shall be necessary and proper for carrying into execution the foregoing powers."

* * *

Without burdening this report with citations, a single quotation from a wellconsidered decision of the Supreme Court in Stewart v. Kahn (11 Wall., 493, 1870) is of value not only as of general application, but as bearing directly upon the provisions of this bill.

*

** *

In that case there was presented to the Supreme Court the question of the constitutionality of the Civil War limitation act of 1864. The language of the Supreme Court * ** is a direct application to the problem be

fore us:

"Congress is authorized to make all laws necessary and proper to carry into effect the granted powers. The measures to be taken in carrying on war and to suppress insurrection are not defined. The decision of all such questions rests wholly in the discretion of those to whom the substantial powers involved are confided by the Constitution."

*

* *

This law, it is to be noted, was held to apply not only to the Federal but to the State courts. As thus construed the decision was affirmed in 1884 in Mayfield v. Richards (115 U. S., 137, p. 142).

*

*

appropriate" or

The question before us therefore is, Is the proposed act "plainly adapted" to the great end of the conduct of war and the support of an army? Does it or does it not present a direct effort to remedy the evils which arisen" and will continue to arise from its progress? If so, and no prohibition of the act can be found, it must be sustained.

* *

*

As has already been stated, the scope of the act is to protect the members of the military forces of the United States during the period of the war And it has been well said: