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Why Lawyers Would Save
OUR SUPREME COURT
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F. H. STINCI-IFIELD OFFERS CONVINCING ANSWER
If Lawyers are sometimes wise, it must be when they
defend their most cherished ideals.
e
President of the American Bar Association Speaks as an Individual
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IAddress Delivered by F. H. Stincheld, President of the American Bar Asso-i'92
ciation, before The Civic and Commerce Association at Minneapolis, Minn.,
February 22, 1937, and Heard over the Columbia Broadcasting System
Ladies and Gentlemen,
'Wherever you are, as you listen today, you are dis-
turbed about the welfare of your country. It is under-
standable. But I can offer you no relief from worry.
Each one of you, as to your own self, knows what
earthly institution you most revere; it may be your
church, your family, or our democratic form of govern-
ment. For whatever blessing you have this deepest
reverence, you would be frantic if you heard it pro-
posed, by the highest authority of the land, that such
blessing be destroyed. You know, without my saying
so, what are the highest ideals of most lawyers, those
institutions for which they have a reverence close to
worship: the Constitution of the United States and the
Supreme Court which interprets that Constitution. Yet
lawyers now hear the declaration that the Constitution
and the Supreme Court will he fundamentally changed.
We have been forced to listen to the defnand that all
we love and respect, written into the Constitution and
sustained by the Supreme Court, be destroyed; that the
complete independence of our highest court end. Remem-
ber all that, please. If we vigorously oppose, you will
know that we speak from a deeper feeling than mere
resentment; we see our gods of this earth about to be
violated. Had we only the poor feeling _of resentment,
you could be careless of our words as'l:'tit the product
of a weak, human attribute. It isn't just resentment. As
you listen, please remember that when men plead for
their ideals, you are forced to the belief that what they
say comes from a depth of sincerity. No feelings founded
in worship can ever be lightly regarded. If lawyers are
sometimes wise, it must be when they defend their most
cherished ideals.
The proposal made by the President will destroy the
Supreme Court. That statement is not made lightly. it
will be destroyed. From that destruction, will come
fundamental changes in the Constitution. If I am right
in that deliberate statement, I shall be able to persuade
you of its truth.
Other Changes Inconsequential _
Many continue to remind you that there are other
proposed changes than the one of which I speak; to these
lesser changes I have not referred in speaking of destruc-
tion. They are inconsequential beside the main issue.
Whether we agree with these incidental proposals,
neednt claim any of our attention. Take them or leave
theml just as you wish. We may not agree with them
entirely; but let's have no debate on-them; they are
but the camouage that conceals the weapon. We can
yield on all of them. For instance, we need offer no oppo-
sition to the proposal that eases be appealed directly
to the Supreme Court; or that the government be notied
when a constitutional question is raised, although in liti-
gation between private citizens; or that the Supreme
Court have a proctor. Let Congress have a proctor, too;
let the Executive department have a dozen. Twelve won't
be enough! Pardon me if I say about these collateral
issues, "Forget it. It's the violation of the Supreme
Court we speak of, those six new judges who are to ride
herd on the present ones who won't be driven into the
Executive corral. But the Supreme Court must not bedestroyed, and the Constitution must stay-until that
time when you, the people, in the manner you have pro-
vided in your Constitution, shall say otherwise. When
you shall have so decreed by that method, lawyers will
protest no longer. Your voice will be our voice. Seldom
does a crisis arise when one can, with sincerity, refer to
words of Lincoln when he spoke oi another great crisis
through which he labored. Lincolns basic purpose was to
save the Union. He didnt care about details. Today,
without the slightest hesitancy, thinking of the Supreme
Court and its proposed destruction and then of the lesser
changes suggested, offered but to conceal the main attack,
I revert to the words of Lincoln:
If I could save the Union without freeing any
slave, I would do it; if I could save it by freeing all
the slaves, I would do it; and if I could save it by
freeing some and leaving others alone, I would also
do that.
So it is today. As Lincoln would save the Union, lawyers
would save the Supreme Court. Incidental changes are
of no consequence.
Changing the Constitution
Let me state to you very briefly the proposal of the
President. For every judge over 70 who won't resign,
the President will appoint another judge, of his own
choosing, an offset, as it were, to the man whose inter-
pretation of the Constitution he doesn't like. If the Presi-
dent accomplishes his purpose, we shall have fteen
judges on the Supreme Court. Heretofore three of the
present nine have often been sympathetic toward almost
every law which Congress has passed. The six added
will make nine, a majority of the fteen. If, perchance,
some of the present judges, heart-stricken by the pro-
posal, should resign, the proportionate majority for the
Administration would be even larger. It is as certain as
anything mortal can be certain, that the mcn selected
will be those whose views indicate, with utter directness.
their intention to support the laws which Congress, under
the instructions of the Administration, shall pass. The
result is necessarily clear. In order to uphold these laws.
the Constitution would then be so construed as to sustain
all the legislation of the Administration. The Constitu-
tion would have been changed just as completely as if
by amendment; except, however, that if amendment had
been undertaken, you and your state could have a voice
and the Supreme Court would hot have been violated.
The Constitution has been amended 22 times, not, as
now pro osed, by increasing the Supreme Court by two-thirds oi! its membership, but in the way expressly pro-
vided in the Constitution. Consider this; if, on each of
those 22 occasions, the amendment had been through a
two-thirds increase in the membership of the Supreme
Court, how many Supreme Court Iustices should we now
have? If you wish to do the example, commence with the
gure six. I suspect youll reach 500,000. Each of the 2'2
amendments was taken in accordance with the simple
machinery of Article V of the Constitution, The average
time for the adoption of each of the last three amend-
ments has been less than a year! Prohibition, the 21st
Amendment, was out of the way in less than ten months.
Is it suggested by the President that these important
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social changes are less dear to the people than the ques»
tion of whether we may lawfully purchase liquor? Or,
perchance, should we wonder whether the impatience
of the President with the customary courses of law has
grown out of all democratic bounds in the last four years?
Consider that possibility!
To express ideas, our chief medium is words. Our
Ideas of liberty were expressed in words in the Consti-
tution. Somebody rnust construe those words; we can-
not have a score of conicting interpretations of the same
words b Presidents, Congress, Governors, State Legisrlatures. ¬Vords can hardly be used which do not require
interpretation. From time immemorial, construction of
written words, statutes, and constitutions has been the
work of courts--of no one else, except that you can bear
in mind the time when it used to be the privilege of kings
and autocrats. The task, therefore, of interpretation
under democratic rule, was for the Supreme Court alone.
There it has rested for 150 years. What other task could
belong to the Court if not to say what the people meant
when they adopted the Constitution, and what Congress
means when it passes statutes?
Not All Congressional Acts Valid _
As you know, if a law does violate the Constitution,
it is, in no sense, a law. It has no effect whatever. It is
a declaration by Congress or the states which they had
no right to make; the people had willed it otherwise. But
you yourselves may amend the Constitution. It is so pro-
vided. Today an alternative to amendment oered you.
It is proposed that men, ready and willing to construe
the Constitution as they are directed, -beappointed to
the Supreme Court; with the utter certainty, known in
advance, that they will construe the'Constitution in that
elastic fashion which will mean that every law is valid.
The Constitution by this method will have been changed
just as exactly as if you had had a chance to express your
opinions as to the wisdom of the change. Make no mis-
take about that. K
Let us review what has happened since 1933f0ur
years ago. Please __remen-iber the~a,verage time for__the..
adoption of the last three amendmentsless than a year.
Much extreme legislation has been passed in those four
years. It proposed extraordinary changes in the rela-
tionship between man and man, and between the states
and the federal government. Someeof -t-hose -laws the
Supreme Court has declared invalid. Why? Because the
laws destroyed fundamental rights. Many more unusual
statutes are now being considered by the Court. Others
will soon be there. With the declaration by the Supreme
Court of the invalidity of these laws; the President has
been utterly dissatised. He has been an that his willhas been thwarted. Law followed law,grfbrced by the
Executive. Some men said that the plan was to so load
the statute books with invalid laws, each, please note,
pleasing to certain large groups of voters, that theStapreme Court would be so harassed that its sound
ju gment would be inuenced. That hope has not been
realized. But the determination to have all their laws
ap roved has not lessened with the Administration. If P
you have any doubt that the President is aware4!... Q ..... ........ r ......4. -1. . _ _ _ _ ¢ A . . . _ . . Q _-_.1 L__ |_:_tut, aiupieiuc 92-UULL 92.ua.u5;ca uuw pluyuacu uy nun
alter the Constitution, please recall his message.
words were:that
will
His
. If these measures_achieve their aim, we may beWho asked that you and I be relieved of having changes
made in the Constitution in the way provided? It has always
been anticipated that there might be changes in the Constitu-
tion with changed times. The manner of such change was
set forth in the Constitution. General Hugh Johnson, who was
ever ready, as you know, to crack down on citizens even when
they believed their liberties threatened by the new laws, has
conrmed the President's statement. In his army way, he said:
The fear is that he the President! will appoint
judges who would probably believe in what the country
has just voted for overwhelmingly. All that is unques-
tionably true. He will do exactly that.
I know that already you haven't the slightest uncertainty
but that it is intended, by the personal selection of new
judges, to amend the Constitution by a re-interpretation of
that document; that the views of the new judges will be
known when they are chosen. Lets see, in an everyday way,
what you think of such a proposal. You have been in court;
you perhaps have been a juror. Do you remember some
questions invariably asked jurors about to be chosen to deter-
mine facts? A few of the common questions will refresh
your recollections. A lawyer asks a possible juror: Have
you talked with anyone about this litigation?" Or, Have you
formed any opinion on this case P Or, Have you read about
this trouble, or this crime, in the newspapers? Or, Are you
wholly free from any bias or prejudice in such a matter as
the one before us? You know what always happens; unless
the answer is unequivocally No, the juror cannot sit. And
you will agree that it would be wrong for him to serve. What
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man appointed to the Supreme Court, if this legislation
passes, could qualify if those simple jury questions were
asked him? And that judge is to pass upon laws and the
Constitution! Will you allow that to happen without your
vigorous protest? Is that what any courtmost of all your
Supreme Court--means to you?
Right Method Clear
You know the manner in which the Constitution ought
to be changed._Articie V declares the method. Is it fair or
candid, to use no stronger words. that the change be made
by indirection? Why should the Constitution be amended in
an autocratic fashion? The way provided has been used 22
times; what is wrong with it? We are used to it; we know
how it works. We prefer going at an amendment directly.
We want to know exactly what the result will be. The people
of this country may want changes in the Constitution. You
may prefer to give up rights which have been reserved
to you. But some of us want you, yourselves, to tell us that,
rather than to have Congress and 2. hand-picked Supreme
Court make the changes. The word of Congress about what
you might think, if you were asked, doesn't satisfy us. Why
aren't you consulted? Is it because you may say, "No"; that
you believe that government is powerful enough already?
Or is the spirit of autocracy in the land already so great as to
irresistibly require autocratic action? '
Please bear in mind, still, that amendment has been
accomplished three times recently in less than a year. Are
you willing that Congress, without consulting you or your
state. and by a mere majority, bring about the same result
that would happen if the Constitution were changed in the
regular way? Do you want any man to talk for you on n
matter that is your own personal business, perhaps involving
your very liberty? You can, if you will, and whenever you
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declared your will.-But we aren't satised to have anyone else
speak for you.
This is the 22nd day of February. In his Farewell Address
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If, in the opinion of the People, the distribution or
modication of the Constitutional powers be in any par-
ticular wrong, let it be corrected by an amendment in
the way which the Constitution designates. But let there
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instance, may be the instrument of good, it is the cus-
tomary weapon by which free governments are destroyed.
The precedent must always greatly over-balance in per-
manent evil any partial or transient benet which the
use can at any time yield.
Are these word: outmoded, silly warnings of hoi-ue-and-
buggy dayl?
Let me remind you of some similar situations. In each
of them the Constitution was amended. An income tax law
was held invalid. The Supreme Court was divided ve to
four. The country was lled with controversy. Only one more
vote with the minority of the Supreme Court and it would
have been a majority, to sustain the law. Two judges. if the
present proposal is sound, could have been immediately pro-
vided by Congress with instructions iromf. the President to
put a different interpretation on the Constitution. It was not
done that way. The matter was placed directly before the
people by a proposed amendment. It passed.
The 19th Amendment came about in the same way; it
gave to women the right to vote. Let me illustrate, in that
connection, the insincerity of the method now proposed. Let's
see if you would have liked itl Suppose it had been suggested
that, instead oi an amendment, new judgés be appointed by
the President to construe the 15th Amendment already in
effect, to give women the vote. Do you recall the 15th
Amendment? It provides that:
"The right of the citizens of the United States to vote
shall not be denied or abridged by the United States
or by any state on account of . . . previous condition of
servitude."
Women said, often enough, in those days, that they were
enslaved without the ballot. Would it have seemed sincere
to you to hear a proposal that new men be appointed to the
Supreme Court to construe the servitude phrase as includ-
ing women, and w amend the Constitution? Tell me the
difference in principle today. _. . --
One recalls that the President said to a Congressman:
Don't let any doubt, however reasonable, as to the
constitutionality of this law prevent you from voting
for it. ,
Will it be said to the new appointees to the Supreme
Court:
Don't let any doubt, however reasonable, prevent
you from nding this legislation constitutional"?
If you didn't like the remark to a Congressman, what do
you say when you think of its being made or implied to the
Supreme Court?R
Do you recall the charge made against King George ofIT.-....1.-.....l ,..... I__..a _..4._.._i.a Tn. ____ ____.|_ :_ .92__ 1'92-_|-___.:___""'u§ '-ll-l-|-r Uh libl il92l92.Ul-Id-I-I LI W3-I Ind-UC In ITIC JJCCIHTHIIOHn0
of Independence and sets out one basic reason for the
American Revolution. Listen to the charge made: "He has
made judges dependent on his will alone for the tenure oi
their oflicesl
The Way to Invite Tyranny
Perhaps it seems to you that there is no danger in this
irregular method of changing the Constitution. Let us dis-
cuss it a moment. Our government was established on an
utterly new theory of government; that all laws should be
passed by but one branch of government, only one; that they
should be prosecuted by an entirely separate set of men, only
one set; and that the validity of laws be determined by a
third branch wholly independent of the other twd. We have
always believed that no man can be wise or fair enough to
write the laws, to say what they mean, and to prosecute
oenders of those laws. For one man or one group of men
to have all those three powers is tyranny. Now please remem-
ber: You know that each of these debatable laws was called
a "must" law ; that is, Congress was directed by the President
to pass them. You know that they were prepared by the
President's men under his instructions. Oi course, the Execu-
tive prosecutes any violator under these laws. And, of course,
when the Supreme Court is dominated by men of his own
choosing, their views, known in advance, determine whether
these laws invade the liberties of the people.
Please tell me what more power has ever been lodged in
an autocrat. Is that what you want? It may be that you are
satised that the present Administration is sincere; but if you
are ready to surrender long-cherished rights, you ought,
nevertheless, to consider the precedent established. What is
done today can be done tomorrow. Perhaps, tomorrow, that
Executive with whom you are now satised will not be in
ofce unless, perchance, the practice of only two terms is
also to be soon changed!, and that you may not be then
satised with the new Executive. But power once obtained is
seldom surrendered. If one President can change the Con-
stitution, without consulting the people, another can do it.
Docs any of you believe that a later President will give over
any powers which you now permit a President to seize?
Shall we change utterly our theory of government? If this
legislation becomes valid, we shall have come to the end of
the road we have been traveling. We shall have said that
democracy has failed; that the division oi powers into legis-
lative, executive, and judicial departments is no longer desir-
able; that government can succeed only if powers are coit-
centrated in one department or in one man. That may be
what you wish. But there are many of us who doubt that you
wish it.
You will remember that growth of tyrannical power
follows no set fashion. In times past it has come through
control of the military, control oi the navy, by. lorcign inva-
sion, by loss of the spirit of liberty, and in other innumerable
ways. It has also come by reason of inertia, an inexcusable
sin; and if it comes today, it will he by virtue of that sin.
If autocracy results, what difference the road travelled?
Concentration of power hii iiwiyi meant, in all ages, dis-
aster to the common man-to you and to me. Why should
we believe the result will be otherwise now? Autocracy
today follows the old pattern throughout the world.
§T_he__above address was d_eli_vered hy_ F._ I-l. Stincheld as In
individual and not in his oicial capacity.!
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NATIONAL COMMITTEE T0 UPI-IOLD CONSTITUTIONAL GOVERNMENT
g i 1 _ j 205 East ,f12nd Street, New York City
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t. , on n..utnmc. THE n|c'..t.u1tv . '
_ xl}. father at the age of ninety-Qitc, told the he Clldllil
feel old enough to glory in iti it is only to the young that the
nltl seem old. 9292'hen we're ten. thirty seems pretty old. and
when we're twenty we look 1111011 P@0Pll? who E9 "Tamed
after the age of forty as ludicrous and even rather scandlu.
To the President's young middle-age and equipment of
Splendid vitality, which we hope will be the same £011! YBBFS
from now, the age of seventy seems superannuated. To the
painter, Titian, working hard at ninety~nine and then cut o
untimely by the bubonic plague, seventy didn't seem old at all.
To Titian. seventy seemed the age at which he'd just begun
really to know how to handle the tools of his trade.
.92lost of the disastrous mistakes recorded in history were
made by men in middle-age. younger middle-age and youth.
l pause to mention merely as an innitesimal item of the
prodigious list, Napoleon at Waterloo. 9292'i1l<@5 B00111 mil
Pontius Pilate.
in the 92'tt-9292' oi anylioily who doesnit preiier lust in his
eyes. there are very few living men who wouldn't nerd to be
at least seventy to be qualied to sit on the benh Oi the
Supreme Court of the Fnited States.
However, after listening attentively to orations by advo-
cates of the bill, and after reading reports"oTithe many state-
ments and arguments in favor of it, I nd that what remains
in my mind. as the boiled-down grist of what I have heard
and read, may be expressed more simply as follows: These
judges are too old because we've got to get em out of the
way in order to change the Constitution without changing it."
That is to say. the proponents of the bill do not only admit.
they urge and proclaim that the present judges must be
removed. or overwhelmed, because they stand in the way of
certain policies. 9292'e may understand the matter better if we
pause to inquire here: H010 do the judges stand in the way
of those policies? M i
The rst part of the answer to that question seems to rest
upon the fact that we. the people, are not__ infallible. Political
orators often tell us we are: but we know better. 92't'e often
reverse our most passionate opinions. 9292'e threw out the
Democratic party after I92l r. Wilson. 9292'e threw out the Repub-
lican party after .92I r. Hoover. 9292'e threw in Prohibition with
great enthusiasm; we threw it out uproariously! Even our
Presidents are not infallible; and we prove how thoroughly
we believe this by the way we reverse ourselves and turn on
i|"""- bringing I0 mind H11 old aphorism, "Republics are
ungrateful.
The framers of the Constitution understood our fallibility.
They knew that they themselves, being human, needed to beprotected from their own impulses. They knew that we, and
our Presidents also, would need this same protection. That is
why we have a Constitution and its careful provision for
amendments. The founders of the country knew that neither
one man nor men in the mass are to be trusted to think
rightly. or for the general best interest, in a lmrry. Moreover,
as the Constitution is the charter of our liberty, and therefore
it is vital to us all that the words of the document should
never be misunderstood or misapplied, its framers provided
us with a dirri'onar_92'. in regard to the Constitution of the
United States. that's what the Supreme Court is. In essence
and reality it is a dictionary.
The judges do not govern the people; and, as for the
policies in the way of which the present judges are alleged to
stand as obstacles, the judges do not condemn those policies.
nor praise them. nor in any manner criticize them. Some of
the judges and possibly, so far as we know, all of them may
ri['['ro:'r- of those policies; it is not their business to tell us
whether they do or not. Their business is solely with the
words and groups of words used in the Constitution of the
United States and its Amendments. They are simply the
highest authority we have on the meaning of those words
and groups of words. All the judges can tell us is what those
words nrean and, by the Constitution itself, their majority
opinion, no matter by how large or small a majority. settles
the meaning of the word or groups of 9292'Ol'<lS in the Constitu-
tion. The judges do not say to all of us or to any one of us,
You shall do this thing or that thing 1." or "You shall not do
this thing or that thing!" They only say, The word black
means black. the word white means ta-Mfr."
Proponents of the bill declare that its real purpose is to
replace the present judges with men who will have the present
President's good purposes so much at heart that, in order to
forward them, they will say to us, the people, "The word
black means 'zvht'!¢',' the word white means block.
That is to say, we shall henceforth have no dictionary.
The words in our Constitution will henceforth mean whatever
any President--good President or bad President, strong
President or weak President, intelligent President or stupid
President and we have had all of these and shall again!»-
the words of which our Constitution is composed will hence-
forth mean what any President wants them to mean.
President Roosevelt itnows his own good intentions and
benevolent purpose; but we. the peopleor at least many of
usare permitted to doubt if he hintrelf would care to take
this risk if he were one of 14:, a private citizen-and if
M r. Henry Ford, for instance, were President! We're pretty
condent, in fact, that if this were the case, Mr. Roosevelt
would prefer to keep the dictionary.
1Mail This I Q DAY and Indicate how _ 1. 5 will cooperate.I s
Address: Frank E. Gannett, temporary Chairman and Treasurer,
Clock
lore
Cllocl
hers
Clseci
here
C heck
hers
Check
hereNational Committee to Uphold Constitiitiosai Government,
Rochester, N. Y. , - ' -"
U I will cooperate in organizing to defeat any legislation that will undermine the
independence of the judiciary, and I will ght to preserve our constitutional system
of free enterprise.
l will immediately telegraph or write my protest to the Senators from my State,
e Congressman from my district and others in the Congress whom I may be able to
inuence. Don't DelayExpress your own thought in your own words!!
E] I will cooperate in organizing local committees to encourage and coordinate protests
by individuals, bar associations, civic, religious, commercial, fraternal and other organi-
rations.
E] I will distribute literature, encourage cooperation of local press, and aid in organizing
protest meetings. .
|:] I herewith contribute toward necessary expenditures for this eort S _____ __
Name ___________________________________________________ _..l ____________ __
Business Connection
or occupation! __________________ _-
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a-
Address _ _ ..________..___..__..__..._..____-__..-_.._-._.____....______.._____-..___.____
PLEASE MAIL CHECK TO FRANK E. GANNETT, TREASURER, ROCHESTER, N. Y.
Will You Use the Form Below to Enlist Another Supporter?
I would rather he right than agree with the President."
"ll is elungins the rules while in mine il"I!.II£_ft'l"::l.-If this isdnotui people's ght-YOUR FlG.l'lTit is lost.
' "i92uhrrietjudiis.i-yis Ill gen nu.' '° ° ei¬o§°e-E <i>Z;7. i~...>
Before the nal pillage lakes place, those who are most
deeply concerned should be heard."
J__ -8snstor BORAH Rep. Idaho! 7-Senator BURKE Deni. Nah.!
Mail Thi TODAY and Indicate how you will cooperate.
Address: Frank E. Gannett, temporary Chairman and Treasurer,
Cheek
Iser-0
Clue]:
hers
Chad!
here
Check
lureNational Committee to Uphold Constitutional Government,
Rochester,N. Y.
E I will cooperate in 1>rganizingto' defeat any legislation that will undermine the
independence of the judiciary, and I will ght to preserve our constitutional systemof free enterprise. ' '
I will immediately telegraph or write my protest to the Senators from my State,
the Congressman 'from my district and others in the Congress whom I may be able to
inuence. Don't Delay-Express your own thought in your own wordsl!
: I will cooperate in organizing local committees to encourage sndcoordinate protests
by individuals, bar associations, civic, religious, commercial, fraternal and other organi-
rations.
|
-0-19 1-22-55!
/ hi
uwnmcsDAVID J
onfusion in the Supreme Court Vti
C.
1
i 5 a a a [ 0R d Victory Seen rn 3 Jurrsts Dissent
Treating Communists as Political Party
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--.-..a__._-'. :_./ The contusion inside thejggigrreme Court of the United' 'f!l§ EFéhi'¬_to grow witheach wales decisions. Thistimeth ommunist Part clnboast oi its iireatt '~Fl%!br'J.
Three ct the nine justices have
accepted the Dersistently ex-
pressed alibi of the Commu-
nists in this country that they
are "lust. another politicalmerit with an employer that
allows any ernllioye who is a
Republican to be discharsed
for just cause. Employers can.
of course, hire_ whom they
choose, arraneing tor an all-
Democratic labor rorce ii they
desire.
A union has no such liberty
Lt it operates with the sanc-I.i__ -1 LL- 114.- _ .. a1.- _-" "---' iuii U1. "H18 utatc UlI' inc Fud-P9~,§_"¬é con es; re eatedly has ral government behind it ItST P
proclaimed by law that the
Communist Party is not a
political party but a conspiracy
which waits for the oppor-
'tune moment to overthrow the
Government of the United
States.
The three justices of the
Supreme Court who have ac-
cepted the arsument of the
Communist-e that they are
lust a political party are
Chief Justice Warren. Justice
Douglas and Justice Black.The opinion of the court/in
the case held that an employer
in Calilornia was Justified in
discharging an employe be-
cause oi membership in the
Communist Party and that it
was covered by the con-
tract between the union and
the employer. Justices Harlan.
Reed, Burton, Clark. Miritcn
and Frankfurter concurred in
the ruling or the court. .
But Justice Douglas. writins
a dissenting opinion in behalf
oi Chiei Justice Warren, Jus-
tice Black and himself, said it
wasn't I. matter ct a local con-
tract and that the doctrine
expounded by the majority
violates First Amendment
guarantees of citizens who are
workers in our industrial
plants. Then Justice Bouglaswrits: -
I115-Eer illustrate my
--diiculty by a hypothetical
cue. A union enters into athe-bargaining agree-e .
is then the agency by which
governmental policy is ex-
pressed and may not make dis-
criminations that the acvern-_
merit mar not make.
"But the courts may not be
implicated in such a discrimi-
natory scheme. Once the courts
put their imprimatur on such
a contract. aovernment, speak-
in: through the judicial
branch, acts. And it is govern-
mental action that the Consti-
tution controls.
Certainly neither a State
nor the Federal .Government
could adopt a political test tor
workers i.n defense plants or
other factories. It is elemen-'
tary that treedom of political
thought is protected by the
Fourteenth Amendment
against interference by the
States, and against Federal
regrmentatlon by the First
Amendment. g
"Government may not iavor
one political group over an-
other. Government may not
disqualify one political group
from employment. And it the
courts lendjheir support to
any such discriminatory pro-
gram, Shelley vs. .I{1'gg111g1'
teaches that the Government
has thrown its welsht behind
an unconstitutional scheme to
discriminate against citizens
by reason or their political
ideology. That cannbt be done
in America, unless we iorlake
our Bill ct Rights. . . ...,-I
~.-i
The court today allows be-
liet. not conduct. to be regu-
lated."
This means that Egbert
t.cl1in§__ of the E'2l8..Jor
ublic. who thinks the
Communist Party is Just an-
other political party" and who
is spending Ford's millions to
advocate - that doctrine in
America, has round staunch
support in the views of three
members of the SupremeCourt. - -
It means also these
same justices reveal an incon-
sistency with their refusal last
week to review a case in which
two workers had appealed
against a court decision com-
pelling thern to loin a union.
though it was against their
religious beliefs as protected
under the First Amendment oi
the Constitution.
Justice Douglas offered in
support of his view in the
California case just decided
that Chief Justice Hughes in
1937 had ruled that a State
couldnt punish Communists
tor holding a public meeting.
But that was 1on8 before the
true meaning of the Commu-
nist conspiracy was exposed,
as it has been in the last
10 years, and safeguards writ-
ten into law by Congress.
Justice Douglas says a de-
tense plant may need to pro-
tect itself against sabotage
but that the worker wasnt
guilty or any acts oi sabotage.
This means that the doctrine
or prevention is being dis-
carded, and. it the artiment
is Iully accepted. the Congress
and the States must wait till
bombs are thrown and. com-
plicity oi an individual is
actually proved before pre-
cautions can be taken against
the hiring or scents or the
Communist espionage d sab-
otase apparatus. It's ll Just
a "political ideology" Jus-
tices Warren, Doug and
Black. .
Reproduction lilbte Mlarvad!
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.I IT"'1"'59 /1/x3 ""'i
upreme Court and Common
EostIand's Charge of Pro-Communist
' l Pattern in Rulings is Reviewed
Congress is under heavy
pressure from "leit wingers"
to kill all the legislation pro-
posed at this session that is
designed to overcome the ill
ee ts of various decisions oil, I'El'l'1§HgD92t' oi theU ted tates. Some oi these
decisions weakened the proc-
esses by which criminals can
be eiiectively prosecuted.
Some have been termed "pro-
Communist d e c is i o ns be-
cause they aid the members
oi the Communist conspir-
acy in carrying out their
subversive plots.
Senator James Eastiand oi
Mississippi, chairman oi the
Senate Judiciary Committee.
has come up with the scores
of the individual justices of
the Supreme Court on Com-
munist issues. He says three
iustices oi the high court
have consistently ruled in I-
tray that beneilts the Cem-
munist side oi the argument.
He declares that . Justice
Black. for example, has par-
ticipated in a total oi 71 cases
before the Supreme COl1l't in-
volving communism, and. as
Senator Eastland says, his
batting average is an even
1.000." Senator Eastland re-
cently said to the Senate: Y
Seventy-one times he
Justice H1380 Black! voted
to sustain the position advo-
cated by the Communists,
and not one vote or one case
did he decide to the con-
trary. I ' '
"It is hard for me to be-
lieve that the Govermnent.
or the States. the Depart-
ment of Justice and the Ped-
aral Bureau of Investigation.
the cobrressional committees
and the district courts and
circuit courts oi appeal were
always wrong. -. - -
Senator Eastland points
out that the "batting aver-
age" oi Justice Douglas was
almost -the same as that oi
Justice Black. The Senator
Justice William Douglas
SENT DIREC OR
__8.'. / y -participated in 69 cases. His
batting average is slightly
lower than Black's. Pro-
Communist votes--B6; anti-
Con1munist3. . . . S
"Felix Frankfurter is the
third member of the court
who has served continuously
throughout this period. He
participated in 72 cases and
his record shows pro-C0m.mu-
-nist votes-56; anti-Comrnu-
nist16."
The Senate Judiciary Com-
mittee chairman has analyzed
the decisions oi the Supreme
Court since 1919 on the sub-
ject oi communism. and he
says that, in the 24 years be-
tween 1919 and 1942. the Su-
preme Court decided only 11
cases involvine Communist or
subversive activities, and, oi
these 11, the rst seven were
decided against the Commu-
nist positions and in favor oi!
the Goverru'nent'." Since 1943.
however, he points out that
there have been I3 cases in-
volving communism or sub-
version, only 34 oi which were
passed upon in the 10-year
period between 1943 and 1953.
In those, A majority oi the
court voted in iavor oi the
position advocated by the
Communists in itcases and
held contrary to what the
Communists wanted in '19
cases. -
Senator Easiiand contin-
ues: ' . ~
"Earl Warren took the oath
oi omce as Chiei Justice in
October. 1953. In the tour-
and-a-hali years since he
has been Chief Justice, the
court has consented to hear a
iantastic total oi 39 cases in-
volving Communists or sub-
versive activities in one iorm
or another." Thirty oi these
decisions have sustained the
position advocated by the
Communists and only nine
have been to the contrary."
The Mississippi Senator
lays he does "not argue that
a judge was always wrong in
each _and every individual. _ -} 1 My
lson
eimont '
L hr P5 1 ,2
nizes that technicalities oi
various kinds sometimes must
result in a particular ruling.
He adds:
"What concert... me and is
of vast concern to the Ameri-
can people is the pattern that
has been developed and made
clear by these facts and fig-
tu'es. Also, since the great
number oi cases considered
in the categories that I have
here discussed arise by virtue
of writs of certiorari where
the court aim-matively de-
cides what it shall consider
and what it shall not con-
older, the startling increase in
the number of decisions that
iavor the position oi the
Communists can be justi-
fiably held to be most signin-
cant.
"Even more important
than the high proportion oi
cases which have been de-
cided iavorabl? to the Com-
munists contention is the
fact that increasingly, under
Chief Justice Warren's re-
lime. the court has been ex-
panding its usurpation oi the
legislative field and purport-
ing to make new law of gen-
eral application which will
be favorable to the Com-
munist position, not only in
the individual cases decided,
but in innumerable other
cases.
The one area where there
seems to be some predicta-
bility with respect to the
Warren court's action is
where cases involve the in-
terests oi the world Com-
munist conspiracy and its
arm in this country. the
Communist Party. U.S.A."
This is the rst time thatdecision that mi result iavorable ' e_ -
munist Position." e recog-
/se
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jiories EjreiSI1p._L6me Court 1 --_q--1-we-Iun|rIIr
As Their Next Objective L
By Rob F. Hall . o . - _ o
FVASI-IINGTON.--The bitter attack on Justice Hugo Black by Justice Robert H. Jack-
son in Nuernburg, Germany, last Monday is an ominous sign that reaction is out to get"the hb_eral mil-Joriiy on the U.S. Supreme Court,_according to a prominent lowyer who.
declined to permit use of his
He considered the unprecedented
action or Jackson pert oi the reac-
- tionary drive against the New Deal
and everything which ma lym-
bollzed. This drive has been suc-
cessful in destroying Big Three
Unity. It has also been successful
In wrecking price control. the de-
feat of social legislation and the
Veterans housing program. FEPC
92 ha; been killed and the antipoll
tax bill plgeonholed.
"So hr, however, the Supreme
Court hasbeen more o'r less beyond
their reach. As a result of appoint-
ments made by Roosevelt, the court
s become a force for progress
o d for the protection oi the rights
labor and the minorities.
ECENT DECISIONS
There has been a series oi decl-
aions which ran counter to the
Wishes 01 Bouthetjn reaction and
big business interests.
For example. there have been a
number of decisions upholding the
National Labor Relations Board in
litigation preased by employers.
ier-e have been acveral decisions
protecting the rights oi the Negro
people, each as the Texas white
primary case, which established the
' right or Negroes to vote in pri-
'Inariel. A more recent example
_ 1'». the decision June 3 outlawing
Jimcrow on bosses in interstate
L hive]. '
' Other decisions have defended
civil rights, ouch as the Bchneiden
man ease, where the court ruled
against an action to revoke the
oitleenahip of a Communist. An-
other is the Bridge: cane which vru
decided against the red-baltera.
I "In the liberal majority reapin-
' able tor these tar-reaching deci-
na, Hugo Black baa played an
portant, Iometimes a decisive
ie. Usually, the minority included
kaon, Ii-ank.iurt.er, Roberta andI
es Aue'er194s~name. . i.
G _ _ __ ___ _ _
l
1 HUGO auteur
Stone. Although Jackson was nam-
ed by Roosevelt, an Frankfurter
war. he has been identtted with re-
actionary trends within the court."
- The method which Jackson has
chosen to wage his tight was par-
ticularly ahockinl to a lawyer. He
has appealed to a reactionary Gon-
greu and, more than that, to the
Home and Benet juliciary commit-
lteea in which Bouthern Democrats
and Republicans constitute major-
wlii be atriking a. blow at the iride-
nendence oi the iudleiary. a. un
merit.
Aaked to elaborate. the attomey
point-ed out that Ben. Jim Eartland
D-92_ii.sa!. I. member oi the Senate
Judiciary Committee can hardly be
expected to examine the cane on its
merits. laatland will judge Black
on the bl-Ila oi the Juatioea Bu-
jpreme Oourt decisions. which But-
iland oppoaea bitterly. '
Hie tllue which Jackson has
chosen for the right u the tact mt/T / :..- .? ,1 - ,, .- -- ii ,71" _! __./-:'1_!_;-I. f P. r it
| bk.
i1
Black eat as a Juatioe in rluoarznr JACKSON lo .
idameritahprtnciple of our IoéYiI;.l_r]X_E / v_,__ Q A, _. ~ 3¬3 [_*_;' »* '
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itlea.'l!heaucoeedsinhlsalms,he' *=?:;-B - ~
92
AUG 22 1945 *
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This is a. clipping from
pa.ge_§'__sec.____of
THE WORKER
Date 59-u,-qt-,_, _
Clipped at the seat of
Government
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92
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92_'
ases in which Crarnpton Harris
irmingham, his former law pa
er. appeared on behalf oi t
nions. These were the portal- -
portal cases involving the Min ,
Mill and Smelter Workers and the
United Mine Workers against the
mine oberabors. _ -
He pointed out that in I943 Jack-
son had criticized Justice Prank
Murphy ior participation iz92. the
Schneiderman case because Murphy
had previously had some connection
with the case at Attorney General.
On the other hand. this attorney
said, Jackson never protested when
Justice Gwen J. Roberts, a farmer
corporation lawyer, participated In
elaea involving Illa old client! lllll
bl; basins: friends.
Meanwhile sen. Kenneth Wherry
R.-Neb! has been act-W81? Prsi
for hearings before the enate
Judiciary Committee on the charges
cabled to it by Jackson. Chairman
at Mccarran D-Nev! has bee
hat Jackson; charges have notpiuctant to agree, pointing oi
nu to do with the confirmation Q
r1
1
1
l- -J
1edit." as itlhte? the out wit
the real business before the com-
mittee. _
Sen. Eastiand, who hates Blacks
progressive ideas, threatened "to
have something to say in the Ben-
ate." Sen. Clyde Hoey D-NC!, also
a member of the Committee, said,
"Naturally, Id he disposed to iavor
Jackson over Black." . '
Run em-it-0 1' -.. rn nu ....92.... 1...-,-'- - a:|92~w» J.||.IplllI 92a.r-nu, wuu llb
recently gone over completely to
the camp of reaction, suggested a
olution.f' He would ask for the
Situation of both Black and
ckson, which is like the old sathe bath water.
j There is widespread agreemen
even among iriends oi Jackso
1t'he.t his disepp-ointment at not
bein named Chief Justice was the
immediate cause of his outburst.
But behind that pique is the deep
cleavage between reaction, which
Jackson represents, and the deienso
of the constitutions} fights of the
people, for which Black stands. In
this struggle, the protection or t
independence and integrity or t
judiciary present itseli as a pr -
gresslve ob ctiv _Wi77iV Y- ice.'.o- W ._.____, ci __ ijji ,_ I
/
itatemént. The circumstance that one of the lawyers ap-
Edge Black at the time of his appointment. His subse- CZi9292.929292 92 xs, . -i _ . --if =5 .. _. I: .. .A _.- - _ 1-," ~ _. _ ,!'.!eBi=1=-mile --»>~ w .... - s_1-=1=}§rseMove Toward Reaction i t-we-is we -as -1»-=1-==°ti "-" 3° """ ' iFl'8.IIk1' Boo 1: illha ur't'The'°rk°f .= I _ _ lll sve w estro ''1" is behind the extraordinary outburst of Justioea 1,1,0, gnd .;°,§,g,, ,,,,1,c,e,v§,,,,e been ég ; 3:-l" 5i=if5_ iifi1='ii- -iiiiti B15611? -J Tmman Administration, working ever closer to the line Cleariy. far more than meets the eye in J3-9"1°Il'Bof the Hoover Republicans. -
i The present policies of the Government, in domestic
gearing before the Supreme Court was a law partner 01- mg foreign pdiciea, "quire com min: to - proveJ"-5t1°° Black 5° ensures that cannot but limit, curtail and finally destroy
fare 192?. _does elnoeratic liberties in the United sum.110% BXPTQIR 1t~_ _ is the presentmove aimed at achieving such a éCo92.1rt0I}1Y the lJ°11t1', eady to_ approve the nulitarias,-tion of the Pati and08111119-"P 11.1 the 1. repare it for world imperialist domination It ouldC011 and thefseem that, this is exactly what is brewing behi the
M ¢§1IlZ1I18l?0llU¢';gce.nes. This is how the country should understandlthese,"iii 11118-1111 in the éommous ioves which mean something quite different
¢°1mt1'Y.0_ffers .8 from wha they seem to. -clue. = "
Justice Black , 1 v ;
Roosevelt as part of his plan to bring some - ,' .- _. ' I k
breath of liberalism into t e Court at a time when the impolgdant social changes. r- ,1 1'
" I , J. '1 Q 1 was viewed as the weapon with ' » ' ' "
reactionaries would use to knife
reforms demanded by the country. Roosevelt 1- _ . g /to do with the Court what Lincoln and Jackson 92"' " "'3' K .
him had had to do-challenge its power to nullify /-
national will. In vain did the big corporations and _,.» 92 --i-I ____,.-"'
stooges cry out against packing the Court." It was
all too dearly that what they wanted was to have a
pack h their own representatives, willing toW ew D_§a_l__ r_'_eforms.
00 AQCllIl5l IIGCK
The same kind of propaganda was launched against
{lent opinions proved him to be a more consistent fol-
rwer of President Roosevelt's New Deal views than the
were willing to tolerate.
The growing crisis in the Court was aggravated, ~39ms, by the fact that it was split down the middle Qéifwas appointed by 0 . , = 7,1/l _' I / ' x /
3;, so-called liberal and conservative wings. This came Q ¢ I _ . 7 /+-1- st _ ' " N; head in the decision giving the miners portal-to- _//.~ ____i-__ 3' _-
I pay. Judge Black's decision won the case for the 1} <1; 1; 2-... _!
1 s in a 5-4 vote. ' _92 C _ S" 39 20 4dge Jackson, a man ambitious to be the Chief ' AL 19 8
e, led the opposing view. Today, he leads the"-assault
St Black. _ *-- --- --*"*
This is a clipping from
page I of the
DAILY 'i WORKER
DatB_ ___ _
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"'UIl'1Iredictable'f%Ull'l1'. u ua
I Tm 21.- __..__;r L... - -|- Iv HlI|Il'IilILI§lIlUIlll
open r t was
againat a bl-ckground of an amazing
exhibition In the previous term of
hah-split reaaoning, large-ecaletihr
regard of judidal precedent: and
frequent adjudication of hnportant
ilmea on a five-to-four divieion.
Diane trenda eauaed concern within
as" well as without the court. To
quote Juetice P.e%rts, "it was re-
grettable that in an era of doubt
and uncertainty "* * this court
ahould now itself become the breeder. of freeh doubt and confunion.f_
= _It wee hoped that wideapread
might lead the juriata to
attempt to reach fewer decisions
renting on the tenuous. bane of one
ote. The fact is, however, that with
one more decision day remaining
before the Sumner 1'2"...-.ee, the ratio
of such decisions this termone in
-eighthaa been greater than in any
other term in the hat {W0 decades
or longer. The climax wan reached
this week when in one eelaion, out of
i score of ioijudicai:iona,.ve ehowed
a five-to-four split.
Of theae ve caaea the moat pub-
; lie interest in in the nding ordering
the release of the 2! former leaders
of the German B d The ¢. iiun : .
ibundiate ma 'Been ebnvi¢te:- of
counseling members of the Bund toevade the Selective Service Act, but
the majority opinion by JusticeRoberta held that tn counsel merely
remee! ie not made by theact? .¢In contrast the minority
opinion by Chief Juatice Stone tookline stand um the defendants "by
icouneeling Bund inembera to refuae ,
lb tnry duty?-ainaeled f i military aervloe. e
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1
INVESTIGATION OF UN
PROPAGANDA A
UNITED STATES
HEARINGS
- SPECIAL
COMMITTEE ON UN-AMERICAN ACT
HOUSE OF REPRESENTATIVES 1
SEVEN TY-SIXTH CONGRESS
FIRST SESSION
I'I. Res. 282
T0 INVESTIGATE 11! THE EXTENT. CHARACTER, AND OBJECTS
OF UN-AMERICAN PROPAGANDA ACTl92'_I'IIES IN THE t.92'1TI~:D
STATES, ; THE DIFFUSION WITHIN Tm: UNITED STATES OF
SUBVERSIVE AND UN-AMERICAN PROPAGANDA THAT 1s INSTI-
GATED FROM FOREIGN COUNTRIES OR OF A DOMESTIC ORIGIN
AND ATTACKS THE PRINCIPLE OF THE FORM OF GOVERN-
MENT AS GUARANTEED BY OUR CONSTITUTION, AND ! ALL
OTHER QUESTIONS IN RELATION THERETO THAT WOULD AID
CONGRESS IN ANY NECESSARY REMEDIAL
LEGISLATION
i____.i.i,
VOLUME 10
OCTOBI-;R116, 11, 1s, 19, 20, 21, 23, 24, 25, AND 2s, 1939
AT WASHINGTON, 1!. 0. ~
Primed for the use of the Special Committee on Un-American Activigg
1 . __ ,§1' If-, '7' /~ ' »~
92'"' "~92 H '».,I
Li" fl 1.- DUNITED sums '1
GOVERNMENT PRINTING ormcn .
um wasnmurom 1940
92
,_ gr-*"""" ' I D * 7 ~ 5,,F, ._:_ -_~ =' ' *
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.- __ i. ,_._.____
TIA ACTIVITIES
ie canipaigned against Marci-thin nl'92 92' nnnnnntirni urn: flint. e .,..._. t...............
|'lI¬l"$.
Communist '?
as a candidate agaiiist Illayor
ket?
-onnection witli Miss Poyiitz.
with Carl Hacker, a former
Labor Defense?
lli19 I ever heard the lianie.
iher he was a member of the
ot know him and this is the
ned.
that IVilliani L. Patterson
' secretary, was a member of
utire secretary, Miss Damon,
1iiii,iz up on the organization
tonal chairiiiaii did you deter-
iefense was ever, at any time,
uteriiatioiial Red Aid, with
International Labor Defense
before, my real information
tense came to me as the or-
these particular cases which
other information on that
r to clear up the record----1 me ask you this riliestioii.
iairmaii you did ma e some
It?
. You see,_ after I became
ih _the_ distinct _undeistaiid-
-iiiiization and still is a non-
-tandiiig?
ele.
take the cliairmaiisliip?
~rstood.
-id the governing board?
iiiig to have anything to do
- noiipoliticnli
iid nonpolitical and its one
vi] rights wlierever they are
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UI92'-Altll-IRICAN Pnoi>.toa_92"i:>.i ACTIVITIES 5969
Mr. THOMAS. What led you to make that request? There roost
have been some reason for it? I .Mr. Mancairronio. It is natural, Congressiiiaii, in ll392'lIlF read any
char es against the International Labor Defense Counci that maylltt92t>Q9ll made, it was only natural, may I say to my colleague.
Mr. TIIOMAS. I am not referring to today, but as of the time you
iiiade the statement.
Mr. laiiciiiirrouio. Correct.
The CHAIRMAN. Something must have led you to make such a state-
ment-.Mr. MainiN'r0Nio. The reason I made the statement was simply be-cause we defend the right of :1 Communist to be a Communist; we
defend persons time anti time again, charged with being Coininiiiiists,
but I never lost an opportunity to assert and to reassert that the
or anization was non-Conimunist. _ _ _iii. THOMAS. Had you made any investigiitioii as to whether it was
Coiiiiiiiiiiist 01' n0t'?
lilr. M .mcAi~:'ro.92'io. My investigation is right there; I am the pres-
ident; I run the or anization.The CHAIRMAN. Ion run the whole organization?
Mr. Miu<o.ii92"roN1o. I11 accordance with the rules and bylaws and
iii £lt'L .II l&I1C6 with the constitution of the order. In other words,
I run the organization in the same sense that Mr. Green runs the
A. F. of L. and the President runs the United States, in accordance
with the coiistitut-ion and bylaws and regulations of the organization.
Mi. THOMAS. 92Vho foriiiulates the policies of the organization; the
governing body?
Mr. M.-iaoaiwronio. Let me say this about the policies: There are
very few policies formulated, because, if we are conviiiced of a per-
son beiiig framed, it is simply a question of getting in touch with a
good lawyer to defend hini.
Mr. Tnomas. You just assume he has been framed up and go
ahead and employ a lawyer?
Mr. livfsnoamroiwio. I said if we were coiivinced.
Mr. THOMAS. If you were convinced?
Mi-. Maiioanroicio. If we were convinced; es.Mr. THOMAS. Did you defend this fellow gizret-ker?
Ml. Mancamionio. Strecker-the International Labor Defense de-
fended Strecker.
Mr. THOHIEAB. Strecker was a Communist?Mr. Biancawmnio. Certainly; and the SUETQHIB ggprt agreed withthe position taken by the International . ense; and if it is
wrong. tlie is wrong; if we were un-American, the
Supreme Court is un-American.
Mr. '1!-I_oni92.s. Of course, personally, I tliiiik it was the poorest
decision the Supreme Court ever made.
The Cnamuan. Well, entlemeii, let us not tr to settle that here.Mr. 192liiaciu~rroN1o. Weii, if you think Chief ifyustice Hu hes is inerror, it is a question of which one you are to accept, Mr. Chairman.
_ Mr. Win'rLiaY. Mr. Chairman, there seems to be considerable ques-
tioii, in the mind of both Miss Damon, the executive secretar , andCongressman Marcaiitonio with reference to the sub'ect of whetheror not the International Labor Defense was ever atl-iliated with theInternational Red Aid. I think perhaps a few quotations from the
r
iI-Ii-2-_-.. - _
92IDA ACTIVITIES
I11 a pa: t of the labor :sti'ii;_r_-_>-le,
s not interested in the defense
I'tgtll llt3r~h of their race, creed.
'llU "l'illl rights are depliveili
liiisiiiessiiiati if his ileium-i':itit:
Nazi if his democratic rights
.;_rhts are involved, certziinlv;
-atie activities, his deinocratic
ii. then; you doiit give a hoot
-tr how much he is I'!ll1lI~illP l,
ty I say to my colleague from
atioii of his deinot-ratic and
"his correct: You rcgai-d iinzi-
eason _92'ou provide that _92nu
-the fact it is aiitideiuocrutic?
:t. a nioii1entit is not as gen-
at persons £lCti92it}'. Usually
from my experience, has been
. the purvieiv of the liberties
tution.
re are taking the phrase used
general plirase. That wliv
am trying to get its applica-
{azi in the United States eii-
ilt of that, he is arrested-
>eech, let us say?
.ll_.|.l
is activities? If his activities
I he is arrested, vre. would not
ud anybody?
resolution, did you just men-
/.is andF_ascists, particularly
are activities that are along
when you said you would not
what in mind?UN-AMERICAN IROI'AGAND.-92 ACTIVITIES 5977
Mr. Z92I.iiu'Ar92"To:92"io. We had this in mind, we had this concrete sitti-
ation, in other words, of getting into airplane factories, and Nazis
liaiigiiig around various places involving the national defense; in
other words, where their activities were of an espionage character.
The CHAI.RM.92N. Itvould th:it be true of Communists?
Mr. liiaacaivroivio. If the Communists were involved in espionage.
The Ci-1.-uiniian. Vi-li!* did you not say-~»-
Mr. 192i.inc,iNToi~:1o. If a Communist were involved in espionage, we
would not defend him. We are not defending spies.
The CI-I.-92Ili.92IAI92'. Then 92vh_v did not you say in the resolution
Connnunists along with N:izis '¬
Mr. 192IARCAI92"IOI92'I0. I have been trying to explain that. That ques-
tion came up before the national hoard and came up in connection
with a specific proposition of a Nazi activity, and We said that Nazi
activity involved espioliage and would not come within the purview
of our activities. The I. L. D. will not undertake the defense
of any Nazi, Fascist, or any other, under those circumstances. In
other words, it will not defend them or anv other persons or organ-
izittions whose aims and activities are aiitilabor and antideniocratic.
The CHAIRMAN. It looks to me like that means what it says.
.92Ir. lilaacaxroiwio. Exactly.
The CHAIRMAN. Anybody whose aims are antidemooratic or anti-
lahor, regardless of what they engage in, you 92vont defend them?
Mr. ltlaiicaisroivio. We 92vont defend them if their activities are
snchl was present at the time that resolution took place-~
The CHAIRBIAN. All we have is what you say in the resolution.
Mr. i92IARCA192I'l0N10. Many times we have lost these cases where wejust have 9292'Oltls and have the S%]]];§¥1S gzourt interpret them. I am
telli_n,o- you just what happenet. -e wi notI will say once
aga11i92ve will not defend anybody involved in an antidemocratic
activity. By that I mean anything which is tiiilawfnl. And why do
we mention Nazis? Because the Nazi constitution and the Fascist
constitution came up, and we passed a resolntioii on that. But I ofurther; if a Communist is involved in an espionage activity. the
International Labor Defense will not defend him. 92Ve will not de-
fend an_vhod_v.
Mr. Sraaxns. W'liat about sabotage?
Mr. l92LtitcANtro.92"i0. Sabotage includes espionage. It would include
sabotage. certainl_v.Mr. STARNES. IVhat about men who are uilt_v of murder?Mr. 192LtRoAi~"ro1~:Io. If a man is accused: of murder, we will not
defend inurtler cases.
Mr. Sritaxzs. I said |1uilt_v of murder.
Mr. MAacA:92"romo. Where are civil rights involved there?
Mr. Statuses. 92Vhat about men who are guilty of arson and the
destruction of property?
Mr. Mano.-ei~:Tonio. Xe not a public-defender o There are
no civil rights involved there. The answer is No ; unless the man is
trained and we are convinced that they charge the man with arson
S1Itl]!l}' because lie happens to be a labor leader. In other words, like
the Mooney case.
Mr. Sraamzs. I said guilty of arson.
Mr. Mancanmmo. Just a moment; I want to get down to cases.
I say where a man is charged with murder, and we are convinced he
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l
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Ii
lUN-AMERICAN PROPAGANDA ACTIVITIES
is innocent of that murder, we are convinced he is char ted withmurder because of his labor activities, certainly we would [lei-end him.
M1. Sramuzs. Now, who is the supreme court of the I. L. D.?I Mr. Manoanmmo. We have no supreme court. Vile have a presi-
c ent.
Mr. STARNES. lVell, who is the man, or group of men, or women,
in the organization that lays down the yardstick and decides whetlier
it is undemocratic or antilabor?
Mr. MAncaN'mN1o. If it is the usual run of case. it is usually de-
cided by myself; if there _is a real policy question in92'ol92'e l, it comes
up before the governing board We have had no such case since I
have been president.
Mr. Sransns. Is it not a fact in the I. L. D.well, I cannot ask
that question, because you have conned it to your knowledge since
1937, but I wanted to ask if it was not a. fact that the I. L. D. had
volunteered its services and stepped into cases and sou ht to inter-fere with the rocesses of the courts of this country, am? if they hadnot attempted] to inuence, to browbeat, and intimidate the civil
authorities of this country?
Mr. MARcaN1"o:v1o. My answer is No.
Mr. STARNES. Never? i-
Mr. l92IARCAN'DONIO. Never; as far as I know; and, furthermore, asI said before, we came into the De J onge case, and tl1
agreed with us, and the St-recher case--
MI1 Sranxss. Was De J onge a member on your board of directors?
Mr. 192Iano.u92"ro192'1o. I think he is. We came into the De Jonge
case--
Mr. STARNES. Is not the fact of the business this: That the reasonthe denouncini of communism has never been embodied in the resolu-
tions adopted y the I. L. D., the fact that a resolution to that effect
has the same chance as the proverbial snowball in the lower regions
of ever being considered and passed by the I. L. D.?
Mr. lilaacaivromo. As I say to you gentlemen, give us a case of
one person deprived of democratic rights by the Communists, and I
will give you my guaranty, if he comes to us, he will be defended.
Mr. S-ramrrzs. And, Mr. Marcantonio, since you have been a mem-
ber, you have undertaken to defend the religious and political liber-
ties of persons in the Soviet Union?
Mr. Mancazwronro. In the Soviet Union, in Alabama, or anywhere
else. We have only had one case, and that was an American
citizen
Mr. STARNES. I want to say I subscribe wholeheartedly to the doc-
trine of freedom of speech and freedom of the press, and that includes
Communists, Fascists, Nazis, or whoever he is, if he is an American
citizen; but I have an absolute aversion to some person who comes
to this country as an agent of a foreign government and becomes a
naturalized citizen in order to wra himself in the Constitutionand the B111 of Rights, to seek the distraction of this Government.
And that is the reason I, and many' other Americans, look with sus-
picion on these various organizations.
Mr. MARCANTUNIO. And the gentlemans views on aliens and my
views on aliens are not in accord.
The Cmmman. Let us not get into that discussion.
92. 4.
4*
l
ll.'I92'-A M Ell II"
Mr. Sranxrs. _And we 1'
come before us, lncludlng
others, who are naturt_thze
ple of America, or to lnstl
tion and the Bill of Rig
heavens, as far as I am cr
Mr. Blaaraxroxlo. Mn!
people of innnigrant stocl
to American developnienl
Mr. Snaxizs. V92'h1ch w~
I am the son oi one m}Sf
Mr. ItIARCA.92'Tl' 92IO. Ain-have been allowed the priv:
Mr. Srasxss. That is ri
privilege of destroying tl
The Cnarnnriize. Let us
Mr. 92VnvrLr.Y. §J<_>ng1"@>*-
Daily Vllorker, ofhcial org
an article captioned I. ]
worlds toilers -
Mr. l92I.92Rc.-92:v'ro192'Io. Tha
Mr. 92Vn1'rL1-:Y. 1933: 4 1
ing to place the point at w
the International Red A1
Mr. l92L92ncAn'ro$1o. Well.
not do it through me. beca
in June or July of 1937.
Mr. VVHITLEY. I think i
anyway. lVe are also tr],
Mr. l92IAnc.-92.92"ro:~'1o. Inn"
Mr. IVHITLEY. Reading
A call to the toners of the '-'-
Scottshoro boys has just been i
International Labor Defense
sections In 71 countries.
So it would appear fro:
that at least as late as 1933
Mr. MAncA1~"roN1o. No,
Communists have made a]
Thomas has made an an}
make the International
Thomas?
Mr. .Vr11'r1..r.:. Let ine r
A call to the tollers of the w
Scottsboro boys has Just been
the International Labor Defer!
Does that permit uncert:
Mr. Mancaivmmo. lVell
knows that the statement
person.
Mr. IVHITLEY. I wanted
Mr. llianoarrromo. _But,
of a third party and is no
- _. . .. '-II" . _c ,_,
ACTIYITIES
I understand it from tho
he necessity of answerptg1 of the peirdency 1n New
that correct-'5
stions or answers by you
=1 with your trial on those
.~ I understand it, and that
.0 to prepare your defense?
Secondly, that in addition
-ar that it might Prejudice
Xew York. you allegetliiit
1 to prepare your detense,
-. you would be spending in
oit of your defense: Is that
section with that, that the
ly in executive session yes-
u on the part of the com-
uisll my stateinent. The
atle by you in the course of
.-ileged. and they cannot be
it seems to be L1l1t]llt_'::tiO1it1bly
by any answer you make to
far as time in which to pre-
lirungli with you .~linrtl_92, 50
7 The committee felt that it
ierhaps. not hear _92_'on at all,
inc-.-'e.~". '0 have witness-'e5
1 every day. You were noti-
e coiiunittee wanted you to
hat it is not being unfair to
.- not required to answer the
a for 2 months. or since the
my trial, you call me down
ili that is fair?
Kuhn-
rou ?
Is attorneys. I want at this
nnittee may reach some quick
y yourself for the purpose of
F. Fiabhatino. attorney, and I
ession at 270 Broadway, Bor-
I represent Mr. Kuhn in the
E in New York on October 30.
10. Prior to that time I was
_ --... 44 .___ . ._.___..~-----e-I-» ----" "" '- ~ -~ mvm,~=+>UN-.-92192lk£RlCAN PIHIP.-92UAI92'DA A Tl92'lTIES 6045
not familiar as an attorney with the case. On October 10 I appeared
in court on his behalf, and on that day Jutlire Follins limited him to theState of .92'ew York. He said that he cutlltl not go beyontl the jurisdic-
tion of the court unless he wanted to t"orfeit the $530,090 bail.
There are 92'ariou.~ fundamental que:-"tions of constitutional law that
I think this committee. shoulclbe interested in, and that I want to
test in the courts of New York. I was to appear in court on two
motions this morning. I was to appear on a motion this morning in
the § it1t I thought that it was my duty to come here
before the committee. We hare a lot of work to do. The district
attorney of New York County has a large staff of stenographers and
assistaiits who have been devoting practicall_92' all their time exclu-
sively to the preparation of this case. Since this committee is a com-
mittee on un-American activities, which, according to the booklet,
or your tlocutnents. I understand is seeking to protect American tradi-
tions and the American Constitution, I ask this con11nitteeand
some of you are lawyersto appreciate the importance of our situa-
tion. 9292'e hare to go to trial on an intlictrnent containing 1-2 counts,
all of them i~eriou.~p The district attorney has seized all of the docu-
1nents'which would help us in our preparation of the case. They
have taken e92'er_vthing. including all of his books. and we must do
what; we can in this short time.
The New York constitution contains a provision which holds the
home sacred. the person sacred. and property sacred at all times; yet
they seized all of these documents from Mr. Kuhn's oice. Therei-
a new constitutional ] U92'i!:-l<>ll that was enacted in New York, at the
la.~t election, and I want to test that provision.
Mr. T}IU3I.tt~'. I do not think that this has anything to do with
our proceeding here this morning.
Mr. S.n1n.92'ri:92'o. E92'er_r hour that is being spent down here, is all
hour in which we are prevented from preparing this man's case for
trial, and I hope that this committee. many of you being lawyei-s.
will appreciate that.
The C1-1.921a11_n:. 9292ell. you have made your point.
Mr. S.=92an.i'rI.92'o. I ask that Mr. Kuhn be EX ll.-etl until l92'o92'en1her.
when the trial is over.
The 'na1a:u.92.92'. The answer to that is that this connnittee will
probably not he in .~es~:.~io|i after the trial of the case, or we will prob-
ably not he in session here. We have many witnesses on the west
coast that we want to hear. and we feel that it is necessary to hear
ltlr. Kuhn now. IVith reference to preparation for the trial, we will be
through here very shortly, and I do not think you will be prejudiced
lll that respect. You are already here, and in a short time we will be
through, and you can go back. Iith reference to the trial in New
York,'I understand that the matters he will be questioned about here
tip not involve any criminal charges pending against him in New
I <I1k: so he will not be prejudiced on that account.
Mr. SAna.t'ri.92'o. It is not that matter that we are worried about.
l ltare to prepare two motions today, and an hour here is an hour
that We could use fruitfully in New York in the preparation of our
vase.
_Tl"' 'H.uin92ux. The committee has considered the requc-.=t. and we
will proceed,
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5103 U.92'-AMEIEICAN PROPAGANDA ACTIVITIES
Mr. Konn. I can answer your question.
Mr. STARNES. All right.
Mr. Krnn. Do you have tt be a. Catholic to go into the Knights
of -olumhus?
Mr. sT.§RI'fFIB. I do not know. I am neither a Knights of Columbus
nor a Catholic.
Mr. KI'nN. All right, that answers the question.
Mr. S'r.92RNEs. Now. then, I want to know if this witness, who says
that he is the head of a. olitical organization in this country, cansay whether it is true that his organization excludes from membership
Negroes and Jews? '
Mr. KUHN. We never exclude them--
Mr. S'ran1~r1=:s. Do you exclude them?
Mr. KUHN. We do not take them in.
Mr. Smnwns. You refuse to take them in?
Mr. KUHN. Right.Mr. Hr.-mnrs. Therefore, if the political philosophy of the band
became the dominant philosophy of the United States of America.
Jews and Negroes would not have any right of representation in this
c0unt1_Y 3
Mr. Krnoax. I object to that question. I believe in a decision of
the -Siup reine Q curt... of the United States with respect to a colored
citizen of the Southern States who tried to become a member of the
Democratic Party, where he was excluded, and appealed his case,
the Supreme Court upheld the exclusion. The Democrats have already
done that.
Mr. Sr.-tunes. May I say that one of the members of that race is a
Democratic Member of the House.
Mr. Knnoan. I was just referring to the fact that that principlehas already been upheld by the.Mr. STARNEB. I am merely trylnig to estab is 1 what the purpose of
this organization is; I am trying to ascertain the true purpose of
this organization, and I am trying to ascertain, through the leader
of the organization, whether he says they have a right to become
a political element in this country, organize a political party to
exclude others.
The CHAIRMAN. All right; let us proceed.
Mr. Sraanns. That is all for the time being.
The CHAIRMAN. Mr. Voorhis, you had some questions.
Mr. Voolmls. This paper which counsel objected to contains notices
to which I would like to call attention: It has two notices signed
by Fritz Kuhn in it, and it was photostated by the Library of Con-
gress, and that is the paper in which reference is made to taking over
the leadership of the Germans in America appears.
Now I would like to ask you_ this question, Mr. Kuhn. Suppose the
bund succeeded in organizing an eective political party, such as you
had in mind here, what would be your answer to this question; would
you, in connection with its work, use the same tactics that were used
ID _otheL1-A nations- _ A A--L ;_ _ ' _ _ L
Mr. KUHN interposing!. .Mr. Chairman, I think
Mr. Voonms continuing!. By other German organizations?
Mr. Ktrmt. That question is very unfair.
Mr. Voonms. Well, you can answer it Yes or No. I
¬
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4
I4.?UN-AMERII
Mr. K92'11.92'. You :-"aid
not a1-art, Then You1 3 '. .
what We would do In 1t'
Mr. Vooams. 92Vhat t;
Mr.
now.
Mr.Kunx. I don't kl
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Deleted under exemptiontsl with no segregable
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Information pertained only to a third party. Your name is listed in the title only.
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agency ies! for review and direct response to you.
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April 17, 19391EJ'W:P'B ' '32»-O0 !
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Director,
Federal Bureau of Investigation,
Re: coUR'r mocsnmm IN mom vsiuscmn.INTRQDUCTICN Ci*FINGERPHIRIS In:Q HA.BITUALgH§[l[[HAL crisps.
Dear Sir: '
There is enclosed herewith as of pO68i'bl0'
terest to the Bureau, a clipping taken Iron the
1!eg__I_ork__"S1m" of March 28, 1939, dealing with s new
procedure of evidence adopted in the New Iork case of
PEOPLE VS. L1acLb'V'Y¢
It is pointed out tint in this case finger»
prints fran states other than New York were introduced
. as evidence in a novel fashion for the purpose of prov-
ing previous felony convictions in order to establish
basis for a habiimal cr.L1_ninaJ. charge against the defen-
dint. .-
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mteh Etatrs: _' rtment nf ilustirr_, m= n, B. er.
In JKll:BK larch 6, 191,3
Re: AJ.1£ISSIBILITI OF CONFESSIONS FRO]!
SUBJECTS IN CUSTODY PRIOR T0 CG-{LEI
I thought you would want to see Judge Ho1tzo1"f's
opinions as to the procedures to be followed by the Bureau
as a result oi the Hchabb and Anderson decisions in Supreme
Court last Monday without delay, and they are accordingly attached. 92' ~ Ia -2 ' _ In _D' M '_J-an EDGAR HE n . 1 __ nmecvon c } Cc23 1'Q
PM . lo}
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Mr. E. A
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Mr. Quinn
Telu. R00
Mr, Neue
Hln Bnhm
Min Glad;
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He icalled Mr. llumford to his office to hand it to him and
at the time offered to be er any further assistance possible, such as
helping revise the waiver of custody form if you desired to follow
his suggestion as contained in the letter portion of his memorandum.
Your deep appreciation for his expeditious study of this matter was,
of course, conveyed to him. N
The waiver of custody fom is being studied along the lines
Judge Holtzoff suggested and appropriate recommendations will be made ~
to you in the immediate future concerning it and advice vrlll be
furnished the field.
Attachment B-E903-DEB
ICTORY
BUY
IJIITIDI$ATll
Avinol
DNDSRespect
D. ll Ladd
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-="-'1?-'~7-"7'-T»3- DEPARTMENT OF JUSTECE
IlJ.l4~llI92|4n-4I9292| an I0'I'|H§r||l92:I|92Jl| l|92Iu
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March 5, 1943.
- __,;__ _. mnmqmnnun FOR HONORABLE J. EDGAR HOOVER
nrzjeggeoe Lo _rsn1ngA_1. sp_R;~.TdJ on invest-.1.cL+,T1 on
- Re: McNabb v. United States, and
h**> Anderson v. United States.
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LgIn accordance with Mr. Mumford's request, I have
closely examined the decisions handed down by the Supreme
Court on March 1, 19b3, in the cases of Benjamin McNabb
and others v. United States, and M. C. Anderson and others v
United States.
In each case the Opinion was written by Mr. Justice
Frankfurter, while Mr. Justice Reed dissented. Mr. Justice
Rutledge took no part in the decision of either case, while
Mr. Justice Jackson took no part in the decision of the
Anderson case. Consequently, the decision in the McNabb
case was by a vote of 7 to 1, and in the Anderson case by a. asoonnsn 5 T°SUr " _
vote of 6 to 1. . ,,.4_3_'. .Z-'1-HQ-' ire,Each case involved the admissib dity QT confessions. $
In the McNebb case the defendants had b Q1 c<ihPez1_c2éi:119:t3
murder in the second degree in the Unit tates istrict ___Court for the Eastern District of Tenneksee, tgwiictim of__J
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the murder being an Agent of the Alcohol Tax'Unit of the
Treasury Department. The case was investigated by the
Alcohol Tax Unit.
In the Anderson case the defendants were convicted
.of e conspiracy t property owns essee
Valley Authority, the specific offense being the dynamiting
of power lines of the Tennessee Valley Authority. In the
Anderson case the defendants were arrested by the local
sheriff and made a confession to Agents of the Federal
~
Bureau of Investigation while they were in the custody of
the local sheriff and before they were arrested by the Agents
and made Federal prisoners.
In each case one of the principal items of evidence
was the confession of the defendants.. In each instance the
Supreme Court held thatp confession was inadmissible and
reversed the conviction. In each of the two cases the court
called attention to the statutes which require a prisoner
after his arrest to be brought before a committing magistrate
in. s. Code, Title 5, Section 300 Title 18, Section 595!.
It should be observed in passing at this point that these
statutes have always been construed as meaning that the
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used in the first of the above mentioned statutes is not
to be gplid in its literal sense, but is to be construed
as meaning within a reasonable time or without unnecessary
delay. This is a point that the court does not consider
or discuss but assumes that under the circumstances of the
cases before it, unreasonable delay in bringing the prisoners
before a United States Commissioner in fact existed.
It &pp68TS that in the McNabb case the prisoners
were detained by the Alcohol Tax Agents, first in a detention
room in the Federal building in Chatttanooga, and then in
the local jail,at1e& two days before they were brought before
a commissioner. ere arr
Thursday morning and were in custody all of that day and
all day Friday. It does not appear when they were taken be-
fore a commissioner, but apparently their appearance before
the commissioner did ndatake place before Saturday morning
at the earliest.
In the Anderson case the defendants were arrested
by the sheriff on April 24, and were confined by him in the
local Y;M.C.A. for about six days before they were taken
before a United States Commissioner.
- In its opinion in the McNabb case, the court emphasized
the fact at two different points in the opinion that the
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defendants were kept in the detention room for about
fourteen hours where there was nothing they could sit
or lie down on except the floor. The court also emphasized
the fact that the defendants were men of little education92-'
and had never been far away from home.
In the Anderson case, the Court called attention
to the fact that the prisoners were unlawfully held, sane
for days, and subjected to long questioning in the hostile
atmosphere of a small companydominated mining town
While on first reading the cases seem to hold that
a confession is not admissible in evidence, if obtained
from a defendant after his arrest and before he is brought
before a committing magistrate, and if the interval
his arrest and his appearance before the magistrate
than it should have been under the circumstances, a
naive study of the two opinions, however, castsbetween
is longer
more
oonsider=
able doubt on this conclusion. It can hardly be said that
the Court in a clear cut fashion goes as far as that because
it calls attention to the fact in the Mdabb case that the
defendants were not properly treated by the officers, in
that they were held for fourteen hours in a room in which
they could neither sit down or lie down except on the floor;
and in the Anderson case the Court called attention to the
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fact that the defendants were confined and questioned in
a hostile atmosphere. There must have been some purpose
in the court's calling attention to these circumstances.
If they were absolutely irrelevant to its decision the.
Court either would not have brought them out, or else
would have indicated that they were not pertinent to the
result.
The decisions may be construed, therefore, as
holding that if a defendant is held too long before being
brought before a commissioner under harsh and hostile
circumstances and subjected to what may be considered as
ill-treatment,=::Ln a confession obtained during such an
interval will be inadmissible in evidence, even without
proof of actual duress. It seems to me that it is impossible
to determine actually what the court decided in these cases, -
whether it intended to enunciate the general broad proposition
suggested above, or whether its decision is the more narrow
one as just indicated. The opinions are somewhat ambiguous
on that point. I
it does not seem to me that as a practical matter
the Federal Bureau of Investigation is called upon to change
its practice on the basis of these decisions. My understand-
ing is that the Bureau always brings its prisoners before a
commissioner within a reasonable time, unless the prisoner
in writing waives such appearance.
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If a defendant is arrested on a Saturday afternoon
or Saturday evening, obviously it is sufficient cuxpliance
with the requirement to bring him before a comissioner on
Monday morning. If a person is arrested on the afternoon
or evening of any other day or the week, it would be suffi-
cient to bring him before a commissioner on the morning
_ -___r__92v_ ___ a -
morning, he would have a right
missioner the same day, unless
some point that is far distantWlllg I113 &I'I'¬STi. .LI' B. PGISOII IS &II¬S'L¬3 9&I.1.Y 111 the
to be brought before a com-
the arrest takes place at
from the nearest magistrate
or for some other reason no magistrate is available that day.
An additional question propounded to me by Mr. Mumford
was whether a prisoner could waive the right to be brought
before a commissioner and whether under such circumstances
a confession made by him would be admissible in evidence.
-v -- ... ._ _
in my opinion this question should be answered in the affirma-
tive. Every constitutional and legal right may be waived
by the person to whom such right is accorded. For ex
"9
the Supreme Court has held that a defendant in a criminal
case may waive the right of counsel; that he may waive the
right to a trial by Jury; that he may waive the privilege
against self-incrimination; that he may waive the privilege
against an unreasonable search and seizure, etc. It would
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seem necessarily to follow that by the same token a de-
fendant under arrest may waive his legal right to be
taken promptly before a committing magistrate. Consequently,
the practice of the Bureau of accepting written waivers from
defendants in cases where such course appears desirable
of his right to be taken promptly before a United States
commissioner, is entirely legal, ethical, and proper and is
not inconsistent with anything stated by the Supreme Court
in the McNabb and Anderson cases. In my opinion there is
no reason why the use of such waivers should not be continued
whenever the Bureau desires to use them and the defendant is
desirous of signing one. _ -
I suggest, however, that the form of the waiver be
revised and enlarged so as to provide in effect not only
that the defendant submits to detention and is willing to
remain in the custody of the Bureau, but also that he has been
expressly informed of his right to be taken promptly before a
United States commissioner and that he expressly and with
knowledge of such right, waives it. There is, of course, a
danger that some may claim.that the defendant may have been
over-awed into signing such a waiver. I suggest, therefore,
that for the Bureau's protection, whenever it is feasible, the
waiver should be witnessed by some person other than a Bureau
agent.
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Manifestly, this will not always be practicable, but in
any gage in which 11; can be {lone Wibh01.1'b G61-Ii'.IneI113 b0 the
case involved, it may prove helpful. It occurs to me, for
example, that a physician who is used by the Bureau in such
cases, might well act and sign as a witness to the waiver.
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TO
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Mr. Ladd _____________________ W
Mr. Nichols _________________ ___
Mr. Rosen _____________________
Hr. Tracy ____________________ _
Mr. Carson _________________ u
Mr. Hendon _________________ m
Mr. McGuire _ ______ nu _____ D
Mr. Mumford ________________ __
Mr. Piper ___________________ _
Mr. Quinn Tamm _________ __
Mr. Nease _ __________________ H
Miss Gandy _________________ __Mr.
$66 MB ________________________ _. !? 271 ~
! Note and Return ___________
Remarks:
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Rosen
Tracy
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McGuire
____Mr. Nease,,,_Miss Gandy__,.Personne1 Files Section I
____Fi1es Section,__.Mrs. Skillman
____Mre. Brown
Miss Weber_____.--
See MeFor Appropriate Action
Note and Return
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c-.,-M.larch 10, 1943
He: Arrest, Detention and Interrogation
of re:-sons in oases Handled ty time
. Federal Bunsu oi Investigation
the purpose or this menorsmhna is to set forth the rules, regulations
and practices of the Federal Bureau of Investigation in the an-est, detention;
and interrogation of perscns involved in =1-mi;-1 investigationsei e i
1. iithp wirrants outitanding.
special Agents or the Federal Bureau oi Investigation are empowered
by Section 3001, Title 5, United States Code, to serve warrants of arrest
issued under the authority of the United States; Sections 2; and 23 oi <
Official hanual or Inst-motions of the Federal Bureau of Investigation, in
the possession oi all Special Agents, quote the above mentioned statute and
provide by way of policy that in ordinary cases the warrants or arrest are -
actually served by the United States Harshal after the subject has been located
by E1 igents. in some situations shore s representative of the United
States Jsrshel is not readily available Special Agents of the FBI actually
arrest the subjects under the power granted in the above mentioned statute.
In other instances lo cal police authorities place the persons for whom warrants
oi arrest in FBI cases have been issued in St-etc custody until e Lkuited states
llsrshal is availlblsc
2. Iithout>Isr.r'ants '
v __.. .
special agents or the Federal Bureau of Investigation are empowered
by Section 30011, Title 5, United States Gods, to make arrests without warrants
for Federal felonies in oases where the Agent has reasonable ground to believe
the person arrested is guilty and where there is a likelihood or his escaping
ha-f'n-n an Ianvww-inf. nan ha nhtlinad--.---w _ --..._.-' -U ..,. -..,'_.....--3
-§eI»aavenL'_a-we - r~-
The policy and pnctise of the FBI in securing the custody of persons
against whom no warrant has been issued when the requirements of Section 300A,
Title 5, United States Code, are set_de::.and that where local authorities are
requested to cake the actual apprehension Federal prosecution must havebeen '
previously authorised by the United States attomey. Ii a Special Agent is
y to make the actual apprehension hinselt he must obtain prior authority from
Bureau headquarters unless an emergency situation exists requiring instan-
§.I92Annl ln§-.*92!92r92_ -i.IC$§Y IE$§3ll-
The above requi1~e..uants are set fort". in Section 2C oi the Official
anual of uastructions.
_gu_1'ii-.5 lIE5i'i?.01'EU
0- ' _ I 1 "' =1 I - r-- ,11hUV 6 1904 I F, _ /__. L / my __
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_l.$s-_..:' UEJSTIDZIINS OF PLRS MS
lhen it is desired to question s person in a case at s Federal Bureau
of Investigation Field Office, that person is invited to the Field Office.
This questioning is based on his voluntary presence. Ihers he is to be question-
ed more than a reasonable length of time he is requested to sign a written
consent to remain in the field office or the place of questioning. Since this
is a purely voluntary arrangement on the part of the person questioned and the
circumstances vary in almost every situation, the fora of consent varies.
In all instances, however, the form of consent includes a statement that it
is voluntarily given eithout threats, promises or duress of any kind. If
the person being questioned voluntarily agrees to remain in a Bureau Field Office
while outside investigation is being conducted as a result of information
obtained from him, the-r_e is no general limitation of the length of time he say
agree to remain. * .
PROCFDURIZ P'U%'ED M-IEHE PPISONLR
I5, "IQ"??? ,11i?J3FT7,,1e",1,1TIiI .,¢-§'13l_12.T.......I -o
1. Universal Rule .
The ;1-none? 19 a1=-eye immediately taken before the nearest United
States Eormnissiorrer for arraignment. In?-ediately, according to Departmental
interpretation tra.na'aitted to this Bureau, means the earliest practicable time
when a United States Commissioner is available. For example, if a prisoner
is arrested after the nearest office of the United States Commissioner is closed
for the day or the weekend, immediately is taken to mean during the morning
of the next business day. 92
2. Exception
The only exception to taking a prisoner before a United States
Commissioner insned._iate_l_y, which is_a_llowed by the rules of the FBI, is when
a waiver of his right to Immediate arraignment has been voluntarily given in
writing. The rules of the FBI require prior approval from headquarters in
sh-shington before a Special Agent may invoke this atception.
There are two situations when such s waiver say be obtsined.- One
is where the prisoner is to be removed to another judicial district. The other
is where the prisoner waives iuediste arraignment in the district of prose-
cution. _
a! Approved '-'-siver Forms for Re."-oval
The-re are two waiver for-as officially issued by the FBI headquarters
for use in the field when it is desired to "defer the arraignment of a prisoner
subject to rwenoval. These two forms have been approved by the T-apartment
anzl will be briefly discussed and attached hereto as exhibits.
_2..
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i" 711'. 1-w-! Waiver of Removal Form Ho. I'D-JJ.
This form covers the situation where the United States Marshal is
to effect the physical removal of the prisoner and after execution it is given
to the United states Conissioner to use in lieu oi a removal bearing-
In it the prisoner is informed of the charge against his and he voluntarily
waives a hearing betore any court, Judge, Comissimer or lagistrate is connec-
tion sith sees-eel end egress to be %io-.'ed to the district e! prosecution "sit-hcut
further objection. The prisoner states he signed this waiver without fear -
and without any favor or promise or resard. " . , _ i
E*lIB1J'J'°s-1 1: *f1"1* 11¢ __5":=1F1L'!L!!;1'=- !°-_££|.-
! ff-iairerct §'o_r_a Io. ID-8 " 92
This fem severe the situation there Blllu Lgents desire to physically
remove the prisoner and it is retained by the FBI. In this form the prisoner
states he has been informed he has the right not to be removed from the Judicial
district in which he is taken into custody without rst being arraigned
and he waives that right. He freely consents and agrees to be removed by '
representatives of the Department of Justice in their discretion to any Judicial
district of we United States, either for the purpose of questioning or for the
purpose oi being held to answer any criminal charge. The prisoner states he
executes the wa.ive'r iizout any pressure, compulsion or coercion of any kind
having been used. - p
E3-LBIT E9-.___= - "=1w.°£ !1==2<>.Y=1J°m_P£2-J'v:l.;-
b! waiver Porn for Delayed Arraignment
in the District of Prosecution .
The waiver torn executed in situations ihere the prisoner is taken
into custody in the district oi prosecution has in the past included a statemmt
that the prisoner has been advised of his right to be taken before a
Commissioner but waives, that right and consents to renain in the continuous
custody of the FBI ii]iTe' eutsideirsstigation is being conducted. The prisoner
states this waiver is given voluntarily and not because oi any threat, promise or
duress of any kind and that such consent to delayed arraignment is not to be
construed as an admission or guilt». This tom contains the date and time
signed. It has been generally witnessed by on slit-nessee, ¢.
fhcre is attached a copy or a typical waiver of arraignment tom
referred to above which contains the limitation oi seventy-tic hours, no longer
than which the prisoner will be held without arraignment. It is recognised that
io."-e lisit should he planed in i ssisss of this nd and seventy-tie hou has
been arrived _at as a reasonable length of time with f-epartnental approval.
.. 3 ..
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. 5= -2-".--I-......_.._ ..Iaa previously etatod an arraignment of a prleoner in the euatody of
the I131 1e not delayed beyond the etetutory requirement except tn unusual casca-
iaere pr Bureau hoedquerte:-e' lppl'Ot'l.1 has heen ohte-ued._ It 1e generally
and Us situations were the eubjeot term into euetody te the rst of e group
if IIlu;| * eote =ore ii em--"hie info-riotioii ii ohtiiid 1eeu1"*i to eitahliihiai,
the identity, due:-eebonte, and complicity of other-e tn the e-e urine. the
publioity attendant on the arreigmeut of eeuh a pt:-eon would ellttete etrongly
ageioet the early eeooeuml terainettoo of the investigation in qeeetlett.
£1]. Nil. IE1 -m-1»v¢§1"',,g 0"; LTQQQII Q BQIEQ
2219.7!!! 1egote=eree£;.n;rQet.e_noee!horeee_seeh_n!tl1;oo!!e
judicial interpretation that my of the tee: forge mentioned above or need
1n Bureau easel aro 111101. Beerchee have been made of we authorittee Iithout
nneeling any decided eaee ehioh Late:-pate nay or the eatvere need.
I4 _. Ah j _ 4 _ #41 _
iizethor i pI1IIIl " our iotitip
tettonal oe hold that he Mn. the ntver, or com-oe
nut he to rtonoe la the pmponitton that the person
met lmoe the legally naive it-
Ibere £0110! a for oitetione on the general question that Constitutional
" M iM@92g*w
well eett-led, they are eleo Iobject to the legal principles of
are cited in thin one the Iolloeiog three Bupraee Court earee.
the eeoe of Johnson va. 2e:-hot, >04 17.5. I-$0, holds that aooueed has the
right to waive the aeeietance of eouoeai.
1he one of Patton v, 0.2!. 231, 11.8, 276, holds that the aooueed may not
the right of trial by Jury even though the Sixth hearbent to the Constitution
!""""="°' W W. :31?-
Ihe v, hank, 237 0,8, 1:9, hold: that the acoueed nay
salvo hie right hetore the jury when a verdict 1e rendered ta aerteinel eeee. . .. - i
m Ollll Q: Q81 '0 U3 , ml 134; I llrt Q80,
that a eatver or preliminary examination before a lbitod Btetee Gumieeioner by
an aooueed with mu knowledge end eppreoietton or hte right to have a prelintnezw
hearing, eillnotbeeetaeidehytheoourtandeheeriagerderedeI
enae or Balaton v, Com, 123 I-ed. ind! 196, rum Circuit Court or
QR || R M 'l92led§§1-elm!!-el Jpn!-4l92 ea-e92e l IIC l",492ue-ll-nail:-nelson! rel.-J-elq -enrap vgvq eyes Uta Ila-elem-ea. IIIIIA-rue; aeeiqvuq Q5 weeuapin-pIee92e.a92nae_q, IWIHI 8
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.*Hith regard to the legality of a prisoner waiving his right to an
immediate arraignment before a committing magistrate, the case of Bishop v. Lucy,
et al, Court of Civil Appeals of Texas 899!, 50 Southwestern Reporter 1029,
holds that a prisoner may waive his statutory right to be promptly taken before
a magistrate after his arrest by consent to confinement pending an investigation
by police authorities. In this case, a city marshal, after basing been called
to the scene of a burgla:-,7, arrested a suspect within two blocks who answered
the general description at the burglar. This was at 1.100 1.11. lie was placed in
the local jail. before 9|O0 1.111. the seas seming, February 12, 1898, the city
nrehal gave the defendant the option or being immediately carried before s
llgiltrlt-I or oi remaining in the city prison until an investigation could be
lads by the city marshal md police officers to determine whether they would
tile a charge of burglar; against the defendant. the defendant expressed his
preference to remain and not to be arraigned. -
The case of Cannon 1. Laerioan Indemnity Oouspany, Court of Civil "
appeals of Texas, 1934, Southwestern Psporter, Second Series 815, which was
a suit for talse inprillornent, held that a prisoner could Waive his right to
an early trial and cited the Bishop v. Lucy case supra and several other tens
decisions. ' - -
1 By memorandum dated March 5, 1943, Ir. Alexander Holtsoff interpretedthe3@ecisions of the Uz_Litedm$tates92Suprene_L1o rt in the cases of BenleninHctiabb and others v. United -Stated, and ti. C.¬Anderson and others V. United
States. . -
I-Er. Holtsoft stated the court in each case called attention to the
statutes which require a prisoner after his arrest to be brought before a
committing magistrate. Section 300A, Title 5, United States Code!. Hr.
Holtsotr stated that as a. practical setter the 1-BI is not called upon to change
its practices on the basis of these decisions. Hi-s understanding, which is
correct, is that the FBI always brings its prisoners before a Comissioner
within a reasonable time unless the prisoner in writing waives such appearance.
Hr. Hcltsotf stated he believes the prisoner can legally waive his
right to be brought before s Coanissioner ismiediately and a confession taken
in the intsrila to be,__a_d1s.i_ssible._ fie states every Constitutional and legal
right may be waived by the pn-son to tom such a right is accorded and sentions
that a defendant in s criminal case may waive the right of counsel, the right
to a trial by Jury and other rights. He says it would necessarily follow that
by the sane token a defendant under arrest nay waive his legal right to be _
taken pmmptly before a committing magistrate. Oonssquently, the practice
of the FBI of accepting written waivers tron defendants, in eases where such
course appears desirable, of his right to be taken promptlrbefore a Cosmissioner
is entirely legal, ethical and proper and is not inconsistent with anything stated
by the Supreme Court in the Mcrlabb and Anderson cases. In Ir. I-Icltsottis
opinion there is no reason why the use of such waivers should not be continued
if the defendant is desirous of signing one.
Er. Holtsoft suggested that the waiver provide in addition to other
things that the -riscner be expressly 1!'lfOIJ8d. of his right to be taken
before a United States Commissioner and that he expressly and with knowledé-IB
of such right, waives it.
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1. 111 frllumru
mu Bu-um Ian um; noagmune Eh: puukility at tulle 81191;! -DIS
of darn: or improper an-taut by he hgunu urban ittglhg p:-hum:-I in in
Iuaioy. I¬hlllDU'II.n:v0dil92dln1'urdlII92llI'uUDI'9241M Gnnmmn am:-uuad
Juries that 011 cuts:-uni-v or umfuquw unduly priamara or mbjocu to 1%:
Lgmtu warn ubunami mu-eiqr vniuuz-113 Iithmlt any ;'-ran*_nn qr throats imtcnr
Itlullongbo-uni rictnna daatu¢'£¢mt92|ho0lnI.!.uaaeoa!no1onb7I%n
no at aux-an or 1:11.;-<1 dngan menu watnmr -M11 be ounu-:J.; eumm with
prejudice. _
Benn 0! tho min or the Iiu-van mgn:-dim 123:0 rmtur an that thogwri 2-arwr 0*"-all be pI'usr.z~!1:' ISé»Ir1§.lt1v-6 3 5 ptagraialm to datmnnim that he in in
good health and tn taut minor 1.; that he dual} bu nub main:-ubln;
that ha $111 ho qtfcrud anal: In luut u-no than daily Q81 tam: at my
ibii, vi x impirinl as in wéuear in eilnirvl fomi ubnn main;
mu he I?-ill ha af-2 1-Z1'__c-1! I112". wlmenc 11" mpnutndg tut hour tall be oi-
tems uw ;-riww-: tfqunrntlyg than Um ;'nc:1*m,<'u Q! I rut rum are an.:.1s£t.1a
=*-Qmvrr t-O¢'rm'!; an I-1. in nuvud it he damn: us rust amp; the ¢'a;r; that.
kc ll lfzonsod than q~.om-unit; for :1-mp at lnigizl-| nut at an; n be
If-iii! he in and ami Irma to can uamorhsg qnnauora: bu la permitted to
rs-st. ha vsotaifuw n-Jxa aurcriag we nantinn at pr-irons:-1: an out out in
Fa-atlun 3-0 at tin oiiioini #121 lanai at inltruutllu vnautlcna In the
turn to um:-a rst I1-<1! priwmr will art ho obi: to inict hum-_v oiunr
aw» ha-W-ii! 5? we--i athr-rs =-ah ea-as ta iii-xii in an-at:-=*92.
In Hold ui.i1eau at than rt? an prvnatod nth drtoatlm re-an in
mfqguani IN: tmwdy of Hm 1-2-tum:-rt. ihuni nuwntxan u.-can an Iq3ip;92OiI
with oanrortuhlq basin and u:1>rap:-huh: Lima mt blankets. mu curtail ! ruin
Qwm ua dnunumwui tuailinu an an out in Sonia: 2? oz the atatcul
321% W1 I
2. ¥anaJ.n1'r§.nqnu'I .
annlnaleprt
Iltnttandllwcltllltllml
mtmdohlltaocimoI.
Galtoavttlllicitrlrod thntnuatrcnil
1 Hamming than mum! hues are at
Inn} F-,2? manna 11¢ Ialtnmumz. It a
utrm 10 no-:. in-wdlawly n92mi1= umpotnnt Imus Dunn n|q=1.a;-as in in
litandnnnl at an I-inns! until in arrival-
3. vain?-nmnoa of 14¢
11.: war *.=:.~ av-.;!.n=;' am i% e.*2~.e=L': H:-.. = pnemmr in $4.-
I.L'I»lGl1§ 01 mam W1" ha-.-. waived tnr=r¢'r,mr tn~a¢:-amt it in re-_.=:'rrv<i int 1
xi-haw an; r -atuzi-.=d 10¢; In m.1nt.uim»d 802' own prim»: I100!-ling an of I-w
must: men:-zéng aurin; him ¢*.atmu.nn. am» 10¢ mmwda mack: t.h.u=.;: ll KM
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phyncim, il"-0 than In 1| 0 at,
his nuns" acorn inw is nurnul] '
nadtaixcu. Mlanttorofh mmm
burrows while I priunnu ll tn nrnung the
looping or the Log; nro not forth F13 than of
Inctrunttmu.
Egg} E "g;.:=t'-'-', [51 é1'*;;>;=;= 1; '}. fj£, .-P; I5 m mini}. I.._.,- . -.
an ofild. iii! Banal of llltruatlonu rovldna Bat
-........'---1-.:';a %.".= .'!'-mean is en-ct-.14 ta iavir'11--a - - ii 1%:euwdy mthoriuntion Bureau mgtoa.
g -Hg 5 1--I. ~31" "
The iiii; hll niwayr inririad that ii: hglntu carom] ' abide by non
than U3: ninimm 1og;n.I.-'11:rp1rwwnt.a against. ilirtll whoa tnhnrrqzauqg uuhgacu
or prisoner-1:. 5;=éd;1 t.;,~umt.a nu unidunuzly inatrucuad in nsir original
tmimry; amen ndings an oonsiatmtly raihrut-ad, that cur: atiort must
be ado to avoid my gustinlbla Q-lain by 1_|_e:_92r9pur, ;J_--
1051]. or met-hiul tactics haw been and to ubmtn I uouhuatm. Focm
3! {6} of the o!:'id.nJ. FBI llama!. at Hulls and fngulnima provides dimiutl
with pnjudiou for any Iuplqu mo nngagoa in such practical, car! ail-s0atd.aa
in out mat vczbnm ' '
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- A.+a;-UIITH3 lA'H"H OF HFRIM
In the District Court of the
VI. United F-tilhl
for the Dian-let of
.__.__..___..._.__._J
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In . A I J- l. .__92___ _ A:__ L _n__. 92__l ___ ___ _ A A 4 _ J A _ _
u.c.'.:.n., nervwy vino anon my amt-s, gurzgé, Qcuulnonif r
algiltruti tn this district and all other proceeding: for nnaval thurctrou,
cad 1.;-run that the judgt of tr.-in dirlot my to:-thuclth tune, and the u:-aha}.
vacate, a nnrrnnt»ro.1=-my rlauval the:-u1rc=~2 to nu Iutrlct 0!
to answer 9.!-ore saw proceedings B6511-ll tn, or proanuea issuing fawn, the
mat:-ict. court. or the United cur.» of the Iilid diltriot against al-
I nuke this uutvrr voluntarily and not-through In: or became of any
favor or praise of rnmil.
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I, , _ W ____,_W 7___ __, having been first fully informed by
_t _t _ _ t ,, _ _t_ 1 _ _____, Special Agent of the Federal Bureau of Investigation
of the Department of Justice, that I have the right not to be removed from
the Judicial District in Ihich I was taken into custody without being first
arraigned before a duly authorised judicill officer or magistrate end except
I-rw irlivlrrl ref I il'IIvQn§ .r92§ 1Il|92enw1 Qllun fan {I-92n§_ nhrmnll n MQIQXU IIQII
my right to be arraigned before e duly nutkoriled judicial officer or
magistrate and my right not to be removed from the laid Judicial district
except by virtue oi e In-rant of removal iseued for that purpose, and do
hereby freely consent and agree that I any be forthwith removed by repre-
sentatives of the Ticplrtmenii of Justice in their discretion to any judicial
district of the United States, either for the purpose of questioning or
for the purpose of being held to answer any criminal charge.
I an executing this waiver and consent of mg own free rill, and
without any prE8Suf¬,§Qmpul8iOn or coercion of any kind whatsoever.
Fhe foregoing docwcent nae read to me before I signed it, and I
fully understand its meaninh; and purport-
'** f r'* ** first * 1e--1* to
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I, , having been IX-11.1; advised of my right to be
taken before e Commissioner, Judge or other committing negietmte imnediately
for arraignment, do hereby coneent to waive that right and to rennin in the
eontinuoue custody of the Special Agent: oi the Federal Bureau of Investi-
gation, U. S. Department of Justice, Irhile intonation furnished or to be
furnished by me regerdilng any alleged Violation of the Iain of the United
States is being verified but in no event longer than '72 hours from the time
noted hereon. I give this consent oi my own free will end eeoord, not
because of any bu1;6&$-*lJ"I pI0m1.BB made to ne, and B1011 consent on my part
is not to be construed as an achnieeion 01 guilt in any manner whatsoever.
This paper has been read to me end the rights referred to hen been
explained to me. I affix my eignature below to evidence my agreement as
eet forth above-
; J - _ -.
1 _'_"'_Zl1""I 7' 7 it; d__ _ZelQ 1
II TEIESS:
0
F
Special Agent, FBI
U. S. Dept. of Justice
92
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Ilrtk Harlan 1943
$1 ya. E i.r§§-51': . E;-]p;_1;}i=--I
M In _Qan -A n-92.- Q||-Q-1|n-_-n|QI-¢a-.- -.nQ -Qll MI 9 U. Il|lI'IIAl-Ul
nuasum A -
T!!! IEEIFFI EZLITY 0! Sillii Tlé.-I Rania!. GHMIEZIT
lacuna or tin cznru-so tnportsmc to tho Inna: 3.111081-1£lI»1'II
nporatinl, ;_mm- aunnaicn to calla! to the 0;-Anion of the supra: court.
on Sm:-ch 1, 19$, in the In mtitlod '92!cI=L§£B at ll. ta, BB1 1151:1153! 51l.1Ie'5.'
la J-1.3.; ease, !_!>e C-seas! 2'"!-ed Q14! m:~.!es.I!Q.2 '_I!4eh 2221!. b...-ea *.!~ka.l;
hm dlflmdantr he}.-" in I!Bn'~',c-dgr 0 pariod of 48 hour: wltizuut having bum
daln-rod bcrore _1 auliittimg otfioor Ion, the:-otoru, immirdbiv in uvidemno.
In cup;-art of thin dnclalan, ho Court itud an Iwmurirug In-nmuea whiwh
11:-it the :'unct$.<~m ntfndnnl ni£'..-eel! to mks u-mats and ecrbfilr 1-uodiately
t-alum tho priaunr bom-0 tin ousnittlrvg ngintr-nu. It was tndzlcatod that 0
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92 . ~-enasn |-aoovzn C -
1 " 92 7* I Qisiiteh Qtatee eas:-intent at 5- '
Q_ leheral Bureau ni Inueltigatinn
-" Hanhingtnn, B. C.
ciao.-1g March l6, 1943
I'92 .
IEIIORANPUI FOR __lll_{ -
WW-CONFERENUE HELD IN OFFICE OFHENRY SWEINHA UT REC-'J%gDING THE
JJQHABQ AND A!J'l7L'B_-S OAT ._Eél'l'5IQ,.1!!£.RE:
sr rrzsnjsvpzazurz cou1zr' ""f r_,."/-. 1
I attended a conference in Henry ?;§|e$inhaut '_s 92-' "Office today relative to the effect of thexggyabb andifgnderson-1--.l_J..._ -Q II__1__-I s._.I__I__'l _._._- J .4 ls!! :1 no n ea_ -ueciaianv an sauerul. criminal rOccii£18- an addition GO oweinn U1; 'and myself, there were present Louis B. Sohwartg,
George Dession, and Irvin Goldste n. he ast three mentioned men
are from the Criminal Division. The following matters were discussed.J _
r 92/ -1 . _,POSlS'IB.l§-EL LEQISLAII UH
This idea was brought up by Schwartz, but it was pointed out
that it would be almost impossible to design legislation to cover allCC-287 ll!
in
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Tolson
E. A. Tsmm__
CIsgg___i
Glavrin
Lucid
Nichols
Rosin
Tracy
Gareth__. -4-_ .-
Coiiey -_~i
Haudong
Kramer
McGuire
Harbo l
Quinn Tsmm__in
----
,f,§
Tale. Room
llr. Nun
Hiii Biahm '
His: Gendy 5 *'._,;
_2
IuQ 92
C "3 .-
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Memorandum for ur. Rosen
was a great deal of discussion on this point, particularly
what instructions could be issued. It was generaly agreed
would be impossible to attempt to define when a confession
be used and when not, and that the only safe procedure for- 3 _
.as to
that it
should
the time
being would be for the Department to issue instructions in very
general terms cautioning United States Attorneys to examine confessions
with great care before attempting to use them in evidence. Sweinhaut
stated that he would get in touch with ur. Tamm when the first draft
qf this circular was ready." * -
4. Iwsrnocrrcusgro rs; ' _ '_
Sweinhaut asked specifically what our problems were in
connection with these decisions. I pointed out that as to arraign-
ments we have been following the dictates qf the Statute and taking
individuals in custody before the committing qficer immediately--
and also following the Bepartments interpretation that the word
immediately means as soon as is practical, depending upon the avail-
ability of a committing qficer. Sweinhaut was of the opinion that
the right qf arraignment was merely a personal privilege which could
be waived by the accused. He did not think that these decisions went
so far as to hold that arraignment is a duty on the part of the law
enforcement officer which cannot be waived by a subject.
Sweinhant inquired as to the percentage qf cases in which
we secure confessions. I told him that in the great majerity of our
cases we secure voluntary statements which are of value not only to
furnish leads in the case, but also as evidence in court. For this
reason and also due to the problem presented relative to questioning
suspects and subjects prior to arraignment, I told Sweinhaut that the
Bureau is desirous-of securing an early expression of the views of
the Department as to the qfect of these decisions on our procedure.
At_his-request I also pointed out generally the content_g1_the_memo-
ragdum_we sentmjhemgttgrney General, and he agaih requested that he be
jirnished with a copy of the sdm??"Ij you agree, I will have a copy
prepared for him. ,; - J It, I,,.
Sweinhaut said that he would have to give the matter con~
siderable more thought before attempting to issue any instructions
for the Bureau's assistance, and indicated that in the meantime the
Bureau will have to carry on with the already established procedures.
He also indicated that it would probably be necessary to have addi-
tional conferences on this subject in the future.
' Respectfully,
/ ~
H092
' 92
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_ .-n.. _1 ._..92-- 3-"; .Q" . __'__-"' '1,-.7 --l ---.-..--r-i --r- *"-"-v er " ' ' * "' "
Jeheral Bureau of lnuentigatinn
Imteh States Department of ushceJO.FiN I:JG'A oovzn ' c¢_23q' _ nunecron ¬ 92 _._ .'2 I
1 . Ix
. , _ _ _o 1 Cf: |92'1 92"R-I '= 0 ¢e 0/e /92__i I r__ I
0._.
AT: JIBanhxngtnn, B- G.-
larch 1o, 194::
I 1 0011 10:30 LI
fyped 12:00 I
v..4Q._
HQl,
e
Ir. Henry Schweinhaut of the Departlent called
to inquire if the Bureau would not want to have a
representative preeent at a Ieeting to be held at
2:-30 PI today in hie office for the purpose of diecuaeing
the violent inpoct on criminal lam enforcement the decieione
in the Ilclabb and Anderson caeee.Hr. Tohon
Hr. E. A. 'l"lmm__
llr. Cleg¢_________
llr. Gl|.vin_________
Hr. Lldd
Ir. Nlchol|_______
llr. Roeen
llr. 'Irecy_________
Ir. Cer|oa_______
Ir. Coltey______
llr. Hendon____,___
lie. Kn-mor________
Ie. llcGulre___,___,_
II. Hll'bO_______,,
ll . Quinn Temn:__
T e. Room
r. Neeee__________
in Beehm______
Illee Gendy_________
In reply to my inquiry, Hr. Schroeinhaut said he is working
independently of Oscar Cox: people and thoee of the Solicitor
General 'e office, that, ae he eeee it, the problem ie one for
hie office to think about. I renorh-ed that the Attorney General
told the other two offices to go into the matter, and that we
sent to the Attorney General d four or five page memorandum
of our vi ewe. Ir. 8chweinhaut eaid he would like to have a
copy of thie nenorandun for hie people. He added he does not
know what will merge from this latter, but he feele he cannot
eit idly by and have the buaineee of hie office transacted
by eonecne elee. .
I advised Hr. Schveinhaut that eonebody fron the Bureau
would cone to the neeting in hie office this afternoon at ~ -~2130 He I
i Very truly y are,
_ 7| __.S ". 3I -v -1.
! f92,_.- ~I'd|:ard 1. 1'
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L 0 92|n1'l: E
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.-; Ylmnhlte II-8 mnrlctod cl oun-
ldnning some 0.000 nlxqcitlea by pin
hoop: during the conquest of the
.._,...,~..» " i;l"=i1iPP1===-
,~.,392 , Hf-l;.E-jl'l:l;'0nthedeeth|ent¢u:ee.
92 .1
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92
¬ _, _' _ This 15 a clipping from1 J, = ',
1; Iv92 If-nlledthatt-hedoomed"'I1ge! 'lMvwrt.mnIzo:op1mon,W! Malaya" received 1 legal um vrmen brG§uefJ92Ist1ee Hahn r.
km "">V- 5-11-111*-I17 Oomxnin-Btone.endm-aedthetheorythatthe
92I'|0l'lI'hlt.|1i:Ilf£n¬edh1l-lllillllih_ Dec. 7 um 2"-;f=_1-=1.-d"*" ib intervene in the cue. leommltted by his troops. Justice:hr Gen. Douala: Hn.c.Art.lmr, ujrmk Murphy, tonne: U. 8. mg;ilnra oi ill nuke 0. military com,»-
m:%:' :=,*.:..-==".:%e ta: =.~.=w*.:='=92
°"mR1l-l1_l5¢I'. will hue theiummisioner to the Philippines,
end Rutledge dissented.
92
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/' l-'_.£-au- _____ f -- r 1
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/2 {_, -'_.'87 FEB 151946 ° ° ""' E K
Clipped at t Seat ofL5" ,/E _I'92- E y ' I
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PJanuary I5, 1155
E!>F~292§w.l;.7'°3JE- '1'* .§:
Attached hereto ie a sop; d that portion oithe Ocngressionai Ileoordyed Iamiary 84, 1955, that
pI'tnina to the Irederi ease Iar Riel: Insurance!.
It will be noted that the!/l.egieleticn hen hoe paeeed
both lcnees -_oi Oongrese by nnsninous vote.
You nu 1- =11 an 1- the o%u?dt Ir.
leardalee advised the Divieion that the ens Qonrtor the United States was eithhciding its Qgieion in
order that legialstion light he put th:-o Oongrees
to keep on the docket a number of Iar Risk Insurance
cease vhich othersise would be dileisesd becaues or
a lack or a legal diaagreenent ehioh is provided tor
in the Io:-id Ier Veterans dot.
I1 this legislation, the Division eiil he
celled upon to investigate additional tar lliak II-
enrance eaese. the ultimate in new run to
considerable, inaiueh ea eases already di-iesed
for i Lia: or i iii-=1 diiiir-oiiint, i he fiiid
vithin ninety days true the baasage ct this act, ad
it the lagielstion had not been paaaed, at ieeet
several thoueand suite eouid have been diseiesed
vithout prejudice, as being prenturely brought
hecauae so valid dieagremant had been entered. It
this had resulted, it is believed tally titty per-
eant oi than eouid not have been rstiiedt
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KEEP! IRON E QGRESIOHLL IIGJHD
DAT!! JJIUARY 84, 1935, PIR'1LIll'I!I0 I'D
HI YRIEIGK GAE! IAR BIS IHEIRNUII
"IR. ILRRIEBH. Ir. President, I desire to bring to the attention
oi the Bonate a joint resolution reported unanimously yesterday
by the finance Committee and ahioh ie now on the calendar. le
joint resolution peased the louse unanimously. It is with reference
to clarifying the definition oi disegreeaent in section 19, Iorld
Iar Veterans Act, 1924, as Bonded. It affects a great number
ot service men in the presentation oi their claine. It would
permit the clainls to go to trial, and the matters involved to he
cleared up. A ease sent to the Buprene Court and the Veterans
administration and the Solicitor General of the Departnsnt of
Justice thought the matter so important that an arrangement no
aade in the Buprano court for the postponement or the case until
legislation could be enacted by Congress clarifying the particular
point involved. 1
"IR. JOHNSON. Hr. Preeident, can the Senator state in just a for
sentence the difficulty which hoe arisen and Ihich is sought to
be corrected by the joint resolution?
"IR. EARRIBCII. Before I ask unaniaous consent for the innediete
consideration oi the joint resolution, I sill lake a hriei state-
aent as to its purposes.
81-lit on e contract ct ear-risk insurance my be tiled under the
act of July 8, 1950, only atter a disagroensnt exists between the
claimant and the Veterans Administration. Ihe administrator
ct Veterans Affairs, in contcnsity with an opinion or the ictins
Attorney General of ioptonher 14, 1931, delegated authwity to
finally deny elains so as to create the required disagreement to
shat is called the Insurance Oleias council oi to Veterans
adainistraticn Ihen that council denied a claim the slailant
eas notified ct the denial and definitely told that that Ias
suttioieat disagreement on which to tile suit. Hundreds oi oases '
sent to suit and judgnnt on this kind oi denial and izere the
judaaents were against the Gcvernasnt these judgnnts have been
paid. There are non pmding in the courts about 8,000 suits on
Iar-risk insurance and about 90 percent have this some hind oi
denial.
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4-vsIn s eese Ihioh erose in the distriot eonrt in Lrkensss the question
of the sntfieieney cl this kind ed e disegreenent wee reised end
the eourt held that there res no disegrenent. ippesl to the
Circuit Gourt or J-ppeele ot the highth Birouit wee gen end thet
court eertitied the question to the lnpreme Court oi the United
Btstes. Bast Que, mm n. Irederiok sgeinst tn. United tstes,
is nor pending in the Supreme Court. lotion to defer deoision as
riled by the Government with the prusise to the Buprea Oourt
that legisletion would he sought to onset into low the preotiee
end procedure followed by the Ystersne Administration. ibis
resolution rill neke good the promises ehioh were sede to these
Totornna end on which the veterans noted. In sddition, it I111
permit reinststcnent of similsr eseee which were dismissed end
in lhioh the judgnenta or dismissal have beer.-me final. mere
ere ebout 100 sueh oeees. Further, since it settles by ls! the
practice followed by the Veterme' Administration, it I111
permit the Veterans Administration to proceed in ite adjudi--_.Ll._. -L __._.___l_..e._92__ gen Ann ____A l_. _e_.I_L 1l_h-.._____A 1_BI-UIULI I IPPTUI-IIIIFIJ-Y GU92|FJ92.| QIIII L11 Illlilll LHIUTIHUQ ll
being olsined. - .
Ihile the joint resolution sill protect the eseee in court end
will pemit len to eooept es Iinel the denial of their elsiune
by the Inlursnoe Olsins Council of the Veterans Aniministrstion,
which is delegated suthority to-so set by the Administrator, it
will in no we; deprive the vstersn oi the right oi sppeel to the
Ahinistrstor it he does not ssre to eeoept the subordinete
denial ii nal.
In other words, this is s neseure iiieh the Ystsrsns' Adminis-
trstion tsvors in order to remove the snbiguity now existing.
It will help s greet number or Iorld Isr Ilterens end ex-service
me -H '. ' i ."'1 L vt ~- 92.
"IR. IGIEH. Ls I onderstend the lsnetor, the whole design oi the
ssure is to elilinste s teohnieslity which hes wrought in-
initioei in 'fi"eIrnuI" "" eiiei?
"NIH. HARRIHJN. The Senator in sbaolutely right.
"IR. J'OIINSOI~I. I have no objection.
"MR. HARRISON. I uak unanimous consent for the innediste eon-
sideretion oi the joint resolution.
ners....,.. t-._:....-.. ...-. ..92.s_._e.i .-... e.a._ n-....s_ ..__.-...-...92-.92 s_ ..........e.1-., es.-pecuu uusugg nu UUJIUUI-U11. vii! IIILLIUI ysvuuuuuu 1:0 uuulse-ulu u-1'
resolution H. I. Ree. 1.12! to olarity the definition oi dir
been reported without snendzsent from the Oomittee on Iinenee, end
_, whieh ess reed es follows:
k§1 < in section 19, Iorld ler Teterens Lot, 1924, ne mended, which hed
Resolved, eto., met e denial oi s olein tor insursnoe by
' the Administrator oi Veterans Affairs or any employee or
1 sgency of the Veterans Lmninistretion heretofore or here-
stter designated therefor by the Administrator shell
- constitute s dissgreelsent for the purposes oi section 19
of the Iorld Isr Veterans Lot, 1924, es mended U. 8. 0.,
_ ,1 Supp. VII, title 38, sec. 445!. iis resolution is lads/ X effective esi oi July s, 1930, end 11.11 apply to all
9 }! suits now pending against the United Btetee under the92~ P provisions or section 19 oi the Iorld liar Veterans Let,
. 1924, es mended, end sny nit which has been dismissed
___ solely on the ground that e deniel es described in this
' ' resolution did not oonstitute e d.ise4=_;reement es defined
by section 19 may be reinstated within 3 months i'ron92 the
date oi enactment of this resolution.
"__N_ "IR. IIQBIARY. Ir. President, any I esk the Benetor tron Mississippi
if the eomittee as unsninous in its report?
" " em. mnnzeon. It Isl unanimous. furthermore, tn. ioint resolution> Ins pessed unsninously by the House of Representatives.
-1
"IR. ROBINSON. I understood the ~Bem tor to say the nsesure is
reeonsnded by the Vets:-ens Administration? ' .
IR. BARRINN. Yes; end eetion ought to he tsken speedily heosuse
of the ierge number of eeses iiieh ere being held np.
HR PRESIDING EPIFIOER. the joint resolution is open to hendmsnt.
Ii there he no ssendnents, the question is on the third reeding oi the joint resolution. s
D -n. Joint resolution res O1'|IOI'I to s cm;-a reading, 1-em tn. um-e
tins, end psssed."
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P. .. . -i_ ,.= -grt - :~+.e11@*=2§:%~.1¢eé.>*~,=_ WW 1' _ ,_ ' J? v_c_r:> E A-"'~" Toy "Z"lW %H Q JQ BI K6 I _ A H J1; '092 C"/If 'l|ll Aggw. Atty. 3:22;-a1, 5.; 1: %§~5/TF1/,,92£iJWashington; D.C. 92: 1v92 -~W*Sc" '
r. lSAINT LDU15
- . .u . F1 l- 1, =1:
" """""' Dear sir:
I have felt a keen interest in the efforts that are being
made to suppress the criminal of the interstate type, and I am en-closing copy of a letter written to Professor M0167; Assiggpgt Sec-
retary of State, which gives the results of my study of t p xtradi
tion Clause of the Constitution as the sis of a national ag¬5Ei?_'With power to apprehend and deliver upigsgitives from justice, wi
incidental power to arrest Federal offenders and share with local
authorities the work of crime detection.
The letter contains my suggestions at length and I shall
not repeat them. Because of your connection with the work and my
interest in it, I am sending the copy to you. I do not assume the
attitude of knowing it a1l,and do not speak with authority on the
subject, but wanted to bring the proposals before you for your
consideration. If there is anything I could do to aid, I should be
pleased to have the opportunity of service.
Very truly yours,
Mai
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W Ma £17 & 7 -.~ HIDE-KER bju.;"§:>~.:u: 1'»-92=g*$mL:Tmr-' -
MEMORANDUM OF AUTHORITIES UPON EXTRADITICRe
nee v Tobin, 240 U,3.l2'7, 60 I-.ed.562|
In the move case a person Ins extradited from one State to
other, and after his release in the letter State, a demand for his
tradition to the fcfrmer State was made, to answer to another charge
eroine He contested the requisition demand upon the ground that he
:1 not leave the first State voluntarily, and therefore did not flee
cm justice; but the court neld him to be a rugitive from Justice ,e.nd
iered him extradited. The cese is important becau e of its discuseion
.5641
.565:ccngreeeicnal powers. I quote from page 564, 6:§§.ed:
"For the pur-pone oi the solution oi the 1 under thisheading, Is treat the following propositionhee beyond question:
92
e !'1"hat prior to the adoption oi Q ion, fugitivesfrom Jue tics were surrendered boiglze. n the Steh oonfcrmsbly towhet were deemed te be the co princip ct comity. Ken
tucl-ry v.Dennison,24 Hon66', 1, , 102; 6 L.ed.'71'?,'72'7; 2 Moore,
Extradition and Interstate tion, 820,et seq!.lb! That it was intended bk lp on or th9'CODlt1BlJ.t1O11
D Lég II n%'-1.15 'to fully embrace, or rather _ o er euthorit upon Co rees
to deal with the eub*ect.;_ .r-,,,,, 1 Pernegflvs-.nie',' 16 Teti...-...,,'
'IUi;ed.1'06Oi I~fontu_' 4-DQ;ng.eon,: prey Taylor v Tainter16 ell 606,21. 1'.» B87; App eyardgédeesaclmeetts, 206 Ug 222'
5]. I-.ed.161, 27 5 .Ct ,Bep.l2 '7 Am. 518.1073.
ge! That the Act 1'19: nos vieed statutes ,eee.5z're,comp.
tat.19l3, eee .10 6! was e ed for the purpose or ccntrcll-
ing the eubject in tar ae wee deemed wiee to do eo,e.ndthat itsnjrovieéons _ Z ded to be dominant, and, so taree tnev _neZEtT3_i con___i"i'imr end enclueive of 3 , W . _ ;- _-e tete evf-1E'I§1=P1-Igg ennayrf * e;1ee1='a ¬3tt'e, 10 f;eII.iTE¬U; kentueiq 1;
Denni n, 24 HOWe J06, 16 L.ede'7283 Iiahan v.Just1oe,12'?U287!! 32 L.ed.2 8 Sup.,¢t,Rep.l2043 Laeoelles veorgic,
1 U3'7. 57 IMO] 49. 15 Sup¢CteRepe6B7e
Conti I "I re thus brought te the remaining heading which
ie: Seco oxgh the order for rendition was not in cm-
1'1ict,either exgreeely or by necessary implicationpith any of
the provisions of the Constitution orestetute, Ice it neverthe-
lees void under the circumstances because it dealt with a sub-
ject with which it was beyond the pwer oi the State Ito deal,
and which was therefore brought, the zoeult oi the adoption
or the etatute within exclusive Federal oontrol,elthougn noprovision dealing with sun}; eubjeot 1: found in ihe statute? re
appreciate this queetion,the proposition relied upon needs to
be eccu.ts.tely etateddit is this:
"The Constitution provides for the rendition to e 3ta'oe of e
person mo shall have fled from Justice and be round in another
state; that ie,rcr the surrender by the State in which the
fu_gi*=ive in round.'I'hie,it is ooncedod,wou.1d cover the once andsustain the nuthoritz exeroieed,ee the accused was e fugitive
from the Justice or U6OI'{_!,1a.,and was found in '1excs.ButWe
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the proposition insists that the statute is not as broad an the
Constitution, since it provides not for the surrender of the fugi-
tive by the State in which he is found, but only for his surrender
by the State into which he has fled, thus leaving unpwvidod for the
case of s fugitive who is found in s State, but who hae not fled into
such Stste, because bragxt into ouch State involuntarily by 1 requisi-
tion from lII|Di"!JIe ind the argument is supported by the contention
that el the statute exercises the power conferred by the constitutionand is exclusive, it occupies the whole field and prohibits all State
eotien eve-.1 upon s subject for which the statute hoe not prov-ided,snd
which therefore in no manner comes within its express terms.
Bit we are of the opinion that the contention m s upon a mistaken
premte and unearrantedly extends the eeope of decided eases upon
which it relies The fi st be 1" el tn-- e _ r , eeuse ..t err_one_o.1 lg anemnee at a1- _
though the statute ieaves s subject with which #0 use power to deal
unprovided for, it therefore took all mu n such unprovided
erea out of any possible State action. d bocruee, whileit is undezbtediy true thet in the cs. l relied upgkentuokylvDennison,supre,Robe:-to Y Reilly; 11%Q, 29 L.ed. 6 6 Sup.Ct.Rep-291; Hyatt v zm rm-1;, we us o 1, ' , L.ed eav, as 31111. t.n¢p.4se 12Am-Crizs.Reps311! the exclusive c soter o the legislation embodied1: Egertlltgltutethwia it-eoogxéifjg-1d,h so osse ehen+;'ig11t_1{ gonstnlgii,§|...-a.*....;;4:-i..i¬i92..'_;_ 1.0.1:-:::____§1c.";d., fe ei7.io]3il_7£_L'V¥:7n7.7-$_ P or 5:~15-o.|:-e;a.92Lp-1-_Ule1_ Lrpm b.lLBJQ.~l1lTfBB1§ 1.01;, ,n/£116 .,§:1e.i_t!_I *n;%1g1na_.i_y__qr_ _'!I9;e<§¢*d=_=da11eei=r=P1I1;qetf°i=21.:§f1?*#ax92 é.P%.5e6a Continuing! '11 Q/elsson is eug;ge>Q9d, nor have we been sble to
d scorer any, to cunts. the sesump on that the framers of the statute
in not making its prov ions cote one with the poser granted by the
Constitution, did so 2' the purpos of leaving the subject, so fer esunprovided for, beggnd e opersti of any legal authority ehstever,
3t2te or Rationale tn tra , , hen the situation with which thefetute dealt nap " Fig re"-eone"'ie nos-motion is that - i§-I ll ti 1- ' ' ' L IJthe omission" extend the sttizuie to Hie FEII IE e 0? cons'£'1'EE{I'one1 over ' ft '_ _f_" have _boe -92¢ n_:fen;Ie <i"fo efeeiethe §u5I%l<T_EI nngrfdefézzfjor not 1-2'" The info 31' all Ise_,LbuFsu b ect to e ' odor nieiftnea. 1 I _ in : 7 7'7 ll 7 ., i ' T 7 itcon no 5 10:5 -. om, Q 5. +1 "egg? -_1_t!'1_tII: we iTeemo4iPeen'e_ntie11_E[_either e ..__o_1_r_|__ o .-.' rn en excIuP.l"Fe1' -~ netTonn1 author "
Rdbrt. ve ' 5 6 Uese°" Ledewl-.144 , 1-c.8488
?g.54B| "'Ihet constitutions}. provision declares that Vs person charged
in any State with tresso'n,fe1on;r or other crime, who ehell lee
fz-on Justice and be found in another State ,sha1.1, on demet. of
the executive authority of the State 1'1 "r.1 -hich T1-s= fled, be de-
livered up to the State having juris diction or the crime".Ar-ts
IV»,eeos2,o1euse 2.'_l__he1'e_ is_;;9_ e__92;prc.-no rant to _Con;-rage oflevinlative W» to oeecfte this '*i3ro7"'{s§'d_| rt=ners-frees-in
___*_8_ n.a_%x;e_ _:-of ;9_1ggg.:____ng; 92 a conte nporury cons .x-no on,9
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tained in the Act of I79-3, 1 5ta.t.at L.302, ever since con-
tinued in force and nov: embodied in sections 5278 and 5279of the Revised étatutea, he established the validity ofits legislation. on the subject. "This duty of providing
by law said Chief Justice Tansy, delivering the opinionor the éourt in Kentucky v Dennison, 24 How.104 5 11.3.,
bk 16 L.ed,'71'7 7%!, "the re ulatione necessary to carrythis cage. ct into !-'..£2QJ.$!.O!'.;, grcc the mture oi the duty
and the object in viee,een manifestly devolved upon Con-
greee, for it it Ial let-_t to the Statee,eaeh State might
require different proof to authenticate the Judicial proceed-
ings upon which the demendwee tounchd, end as the dut of the
Q_<>gqr:ri0rA_o1' t_11e_53ta.te _;qhZer_e the__fl;lt1VO_/Tal y_£auE ice; ineucl-T_'§cee_e} more ¥1'1pln7iayt_e z_'in.l_ w§."¬houf"P1e Fig;Ft to exer-Fiie 'E'B.er execu vi o1- judicial diecre§_on he ccnld notlawfully iesue a nu-rant to arrest an in viciual without e.
"A person charged by indict {1} attidevi before a magi!-
trate with the commi esion hin a tote or a crime covered
by 11;: lave, and. who, at the de of the cormrieei on oi such
crime, loaves the fitate nutter 1- when purpose or motive-
nor under what belie!-be e,1'r the time of such leaving!
and ~'-'1t'hin the mcanig oi 5l'1_92, __stit1itiQz1_ -um the lees of .-bi!Uniteclltatee, a fugitiaz 1ro9292_j§et1ce,cnd if found in m0ch.e1'3tace met be -.1eli.§=>:-e1i~°}92t> by "the Gcvemor of such State tothe 8=ate whose - TS are cl ege<i92@ have hem vio1ated,on the
production of h indie true or afric1evit,certified as authen-
tic by the Go nor 0! the te from which the accused do-1
parted. 31.1011 i the cormmnd the eupreme law er the land;
which may not b diaregarde by any State.
"The cor-!_£I_;i._;tion ._______ _ ., __on 1-eieei% to igitivee f!'¬.'lL'I. gue-
tice the history oTIta adoption will chow, 1: in the
na or e trc stipulation entered into for the purpose
or curing a pr pt and efficient administration or the
cri nal laws of he several etetee, gn o1:;J]oct__qr_ the _t'_ir_et
con to the 16 Of the entire cgucnf ' **"eEd ITIEQ eachSta s oun i'iri'5"1i-zy to thze Conititxlzgion to rccognizee
Afai 1 gsroue enforcement oi that etipulat ion is-vita].to t-he y end wolf-are or the Staten ,and while e State
should take careyvithin the limit! of the 1aw,thct the ight;or its people are protected egainet illegal l.etion,the audi-
eiagl. ;utho_!'it1ol or +1-1ey_U!'gi._on_y_c11p=1_]5i_ e_-1ua1],_y_ 1_;:1k_gLg_a1"e W y.,_a. _E53 ri1'oviei§ne___'51"lt};e;I5on{Ei'thti_o_n_;he not so ne_rro*?f interi--m~et§&*ar1;§jg1;s;§' <§o-_*n:[oE"1l"1!1=;;~1,'1'i§_1eE'c the 1+n~e:**@ro*§sr;r;T°_P_:1_r:§:a 3Je rmine}i_§ ;gjifI'u_'§.|g lnjeae ta rj;IiiifcIrff_6? TirI6tT'T¬{F3 ta;-e , iee ct the etete er ct congreee te eut*c-*-we it;APP1e;Ynn'.l v Massachusetts, 203 e.1se=
"In Roberta v.Heil:.y,ll6 u.--nee, 95,97, 29 L.ed.544,54¬J, e
Sup-Ct.I~tep.29l, this Court laid that the Act oi Con;-rees,eec-
5278 of the Revised Statuteegnade it the cvt1_7 of the executive
authority 01 the 3t!-to in which in found e person charged with
crime cigainlt the lave or mother 3tate,end who has fled frm¢/' _ ,
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its _1uatice,to cause the arrest of the alleged fugitive
from justice whenever the executive authority of any State
demands such person as a. fugitive from Justice and producesa copy of an indictment found, or affidavit made before a
magistrate of any State,chargir.g the person dennnded with
having committed a crime thercin,certiried as authentic
by the Governor or chief magi: tr-ate or one State fro:
whence the person so charged has fled. It must app9&1',thl!'e-
tore ,to the Governor of the Sta o to whom sud: a demand is
presented, before he can lawfully comply with it,first,that
the jnrson demand. is substantially charged with a crime
against the laws of the State from 92 so Justice he is al-
leged to have ilod,oy an indictment an affidavit certi-
fied as authentic by the Governor or he State making the
demand,and;econd, that the person de nded ila fugitivefrcn the justice or the ~5te.te,the er..92-!~-tire authority oiwhich makes the demand. The first e£- EE . pre-requisites
is a quest ion of ls.w,and is el?i?aia__open pen the race of tinpaper! to iudicial inqui ,§;n92qpp1ioatiog92 or a dischargeunder a ur t of habéas prpu§§92he,cecon _, a_3poqtiogn&§tact which the Govern "or the int u on i " ' 7 _ , ,_ _____ o ~ 1 o_9__i 9, _-9=1}1I1eooclom~=-,Iengie gnu-at cfecfde o n @1165 on ence_aa he ;j.gL:<1:eem__sa_¬Ts: 'fac;ori fa H i N
_92 » /Illinois, ex rol.;;¢1-iichols/gnae, QOQK-.100 52 L.od.l2l 1.c.12:'5://. _ - A I I
Y3-125: One arrel ted a éheld as i e from justice is entitled,
oi ri'¢ht,upon I as corpus to question the lawfullness ofhis arrest and imprisonment showing by competent evidence, cln ground for h 92releese,*..11 he wt-.s not within the meaning ofthe Constutitlorrand lass the United éwm, 1 fugitive
from th§_._§~l.l ice92-b£.___the nding State and thereby overcomethe Préfsumptgon ta trarnr arisimgfrom the face of the
extr tion warr nt q'1'*'l=I'-I-~li'=H*
"if her the al god criminal is or is not such igitive trongun; ce my, so r ea ie Constitution and laws of the United
ts. a are cone ned, be determined by the executive upon when
the nd is do in such my as he deem satisfactory, andne_ is _ i ed to demandlproog apart from requiaitiontgapez-ls_
T?-o*mi:'EBe 6:111 Sta to thatffhelaccuzsed is a fwltfve from
justice e - '
Lascellee v Georgia,l4B U.S-541, 3'7 L.ed,5-69, 1.c.55l|
Pg.551:"'Ihe sole ohjcct oi the nrovision of the Co'1:stit11.tion and the
Ac o Congress o carry nto effect is to _sec_92_J.r§___th9 sorrog;
der4of oersona accu s_e_d 9! crime who have Hod _f_r_qn the ]us_ti ce_5f la o'Ea1'.g, w11.oae_ I515 Elezjalz-e "E1:-rge'§_ '~"iTiF1 i1T5IajTiEg._ either"¬ha*cenee1turio:£ nor fe ct or Congroes *prov£d'£ng for therendition 01' fu,;it;ves upon proper requisitions being made, con-
fers ,either expressly or by implicatiocn,nxry ri,';ht or "privilege
upon such fugitives under and by vi:-me of which they can assert,
in the State to ~.-which they are returned, exemption from....-J
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trial for any criminal act done therein. No purpose or
intention is manifested to afford them any immunity or
protection from trial and punidment for any dfensel
oozmitted in the 3tatn from which they flee. On the contery,
the provision: of both its Constitution r-nd the afntutl
extend: to all crime: and offenses punishable by the laws of
the 1-iteto where the act is done . Kentucky v Dennison, 65
U3 24 1imn66, 101, 102, 16 L.ed,'7l7, V271 Ex parte Reggoe,
11 Ue3o642 % LeUde25U,e
AUTHORITY T0 ERFDRCE CONGRESSIONA 13333 BY
Cl-'iIil'I1'iAL 1'iITF6Rl"I'I§f»iEIT';T :7.L'iI3 MID i::Ii;" "HIS.
UOSO v
I252.540: An% not committed with a v . or ading the 1?§{j1B1&tiO!'1
of ongresa passed in the ecutio: of any of its porrere,or
of fraudulently eecuri -e boner a of such legislation, _
my properly be made e.n_ enae inst the United BtateaeBut an act ccnmitted. with 92a92_§ta e,=.-mether for a. good or 0.bad p:r¬:=e,do? '1-ahetr1e1;i tm92;:£;;1o¬gitUoii:tadog¬z1%h~l izitei, cam".-o mn <3 u?'1/91!L.@___ 1339. _ 0 n 6 a -es,un..eas
it lmve _aeme_ _:-e_ tfon to " exe tion oga ower 0; Tip Q-res!61 F0 s are mat}; vgT'EH1n f_ __ pjri__!cT.Ion__e1f'g'¬?1e ZFi{'!¬e*£§'s'1-e§¥i§=_e_'_
Axfaot hot hevi F eiiy §u61i' 7-.iticTnvfe one in res'p'ect' to which
the State alon can legie-la ." ~
5ee,e1ee U.S v.Bs11, i-I-8 8.346, 2" .ed.l8O, where the p01-'61 orCongrats?/$o¢~eke nt of pension money a. Federal
often ../r§_'§"..1e*.:aiz'.e..-./73.U
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92I°l-Q "LPH°N LBS,
emrrr LOUII Auguei Q; 1935;
Hon. BeAeeietant secretary 02 Stet-c,
llhilitng 8.01
ml, Ute ml - "A
i little ncre than a yecr age up attention eae directed to
the peculiar phreeeclcgy ct the conetitutioncl provision concernim
extreditionpn it occurred to me that it might be used ea the tounv
dation for neticnei Iegielaticn to euporeee the interstate criminal.
At that time I eae an aepirant tcr ccngreecional hcncre in the Deuce
cratie primry and intended to give come publicity to the idea, but
finding the cchzme ei the nctrcpclitan preee closed to me. except
et the minim: ccct oi 9 cent: per. word the old adage mat "silenceie golden" eppeerec to no in a new light ma I wee tcrcec to tcrcge
the diecuccicli ct a eubject ee tar-rceching in ite economic and ecoial
coneeqttencel. ibe preee, however, carriee the newe ct your conference
with the Preeident for the nurpcae or mapping out a national program,
both iegieiative and administrative, to main war on the rachetecrkidnaper and other violent crinincle who ecccpe cletcction by fleeing
from the scene ct their crime into other stctce and romcte communi-
tiee! ceterlcinetion ct Qrcciccnt to ens; the mi-v__,n ci organise;
crime ie indeed gratifying to Int-ebid citizens everywhere and et-
torde another illuetretion ct his fideli to public duty. I em,thcree
tore, induced by my interact in the subject to give you the rccultact cg invectiiicn ct the queeticn of rcdercl authority undcrlthe
extraditicn c Ile -
I aheil not occupy your time with a ciecuccicn of the oce-
ncnic lcecee or eocial ncnece ct the crime wave. I an ooncernec
only pith. the qneaticn 9! iegg rc!_ac,v= 1.1.1. III Jmlgwstit the! 1'e1H_@r.!',Idcee not involve the eurrenccr er any pcverhvy the Btetee, but cone
eiate in the enlargement ct Federal peeer under czieting ccnetitu-
tional authority through entercemcnt etctutee. ma gr cecnt crimeeitcatim eree not cnticppetec by the nakere ct the Constitution, or
ee ehculc prchetig have had a Icre euple and specific grant ct
ccngreeeiohei power tc acct it-. I-Icdem invention hee literelw
given the criminal wings. Bic bank-robber n:|.gheey-men and otherty-pee ct thief tlee with their beet; inge mother State or
rt-mic c~'...:r.'.r.it:,' eith tn}: c ~clig'.92.t' c!~..c.r.ce £ hcirzg i=i-..~ntii'ic~i=
mere ie ne practical ccerdinaticn or cooperation ei the police
egcnciee et the verioee statee no citiea. me tech et disseminating
information concerning the numercue crimee ccmittec and perecnei
ccecripticne oi eucpccte ie too gigantic for local ct£'ioicle- Ae
e remit, the chancel are eh leect 9 to l in the crininaih
raver that he will eecepe, at em rate until alter the pmeical
evidencee et the crib have been diepceed cl. me creek-teen inin cnicrceeem ie in-iearilr cue tc lack or chilitLand lack cf
taciiiitics tc %=°-e ='" -""*'"-"'~"4 *.:-he g'.iiit7-i 3 -11:1: thi: is
the Ircng end oi the preh-
-m<s4-u t
due be the loci that§...-I
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Prof. _-aley, 113.2. -
lem. Grime is fairly sell organized. In all large cities and in many
smaller ones,there ere criminal groups or gangs, and above them the
criminal leader. llsny or themsre ex-convicts. llcst oi then ere known
to the locsl euthorities,and their habitations and hang-outs s.re-
known. I haven't time to discuss methods of crime detection, nor do
I possess sny special knowledge on the subject, but I believe e cen-
sus eat the criminal element could be taken, and s record or their
places ei abode and usual haunts could be mde mi placed in the hends
or s¢c_e_n_trelised,.secret_ policesssgencygunder the direction er Federal
men, with the sid of local police aid detective forces, so that the
movements of these men could be checked end watched insnedistelly after
the comission of e crime of the cherscter mentioned, and their pree-
ence or absence from their usual haunts would furnish s key in many
cases to the solution of ti: crime by narrowing dom the number ct
suspects. Ii criminal gangs ere to be broken up, some plan must be
adopted under which each gang will be under the constant surveilenceor somefI00I'Q.1F..POlico,__e__4BQ_1. This proposal does not contemplate the
the exercise of -ordinary police duties by Federel men, but is made
upon the assumption that s linitednumber of Federal detectives with
the sid of local police forces will be able to do such work without
intruding upon the ordinary functions or the locel police.
it the time or sq investigation et the subject,l did not
anticipe the sdditional powers that might accrue to the Federal
Government under the recently enacted emergency nessures,auch es
the HIR1 snd the various industrial codes, which have undoubtedly
enlngged the scope of Federal police super-vie-ion.l did,however, con-
sider the revenue lsws and posts]. regulations ss the basis of s lim-
ited Federsl police etuthority, but doubted thdrafailnbiliiq te
rcsch the vest nslority ei ertenses s:-icing solely under State lsws.
I was looking for some provision that would confer authority to
cover the entire field of interstate criminal activities, and I
believe l have room! it in the extrsdition clause. I do not wish to
leave the impression or cookeureness in my conclusions, which my-
be challenged on constitutional grounds, but in view of previous
constructions placed on the extrsdition clause by the Supreme Court
and the serious nature of the present crime situation, I an cfadze
opinion that the Supreme Court would sustain the creation of s Iedgereirsl-lee enoéfhoso functions would not supersede State meter?-ity. Rscogggnk e superior learning of the ?resident's legal ed-
visers,I know they can separate the whest tron the chef! in my idess,
end it there is eny mrit in then, they will be able to utilise thst
which may be Pl'.'l.6t16l-ls "
Before submitting my osn personal conclusions,I vent quotethe Constitution end the Est:-edition Statute and exserpts tromgpreueCourt/$deo1_eion.s._con8truing the sane. This will add to the length of
my 'letter,but will save tine for you,tor, if the matters quoted do
not convince you that the question is worthy or consideration,I do not
think it would pay you to go further into it. I do not mean that my
study is exhaustive, but it is sufficient to afford n starting plnce--
or a stopping place. The extrediticn clause is round in section 2,
Article IV. of the Constitution ,and reeds as follows:
"A person charged in my state with tress-:on,.telony or othercrime ,whe shall tleezrron justice and be found in another
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Prof. Holey, pg, 3, 92
Stste,shsll,c-.. demand oi the executive authority of the
State from which he fled be deliveredu to be removed tothe stste hsving jurisdiction 01 EH3 c1-Ems." _ ~ -
0'bvions1y,the foregoing provision applies to offenses against
the laws of s. State Jt requires that the person -to be extradited be
charged with the commission of c. crime,but the manner ct presenting
the chsrge,and whet constitutes s. charge ere matters for congressional
de1inition.You;_wi1J. note that the foregoing provision namcs"ths exec-
utive authority of the State from which he tled as the one to mks -
the dcmnd,but tails to designate the authorities who sq apprehend _
and deliver up the tugitivmthis omission may be impcrtent,fer,n.i.eea- F.
the power er e State to arrest and deliver up the fugitive is,by nee- ' vI
csssry lmp1iostion,e::c]1:.sive of Federal pover,there would seen to be
tome for a separate or coordinate Iedersl agency to work in coopera-
tion with State suthorities.The courts have construed the provision
to be in the nature of a treaty stipulation between the States, This,
I essmse,is bceszuse it took the place of mutual arrangements between
the States that governed the surrender ct fugitives prior to the
adoption ef the Constit'ution. -See Appleysrd v Iasseehusetts,203 U.8.222, 51 Ineddlh Iron such interpretation the pever of s State to
apprehend and do ver up a fugitive is clearly in:p1ied,bnt it does "- T
net follow thst such pow:-er is ezo1:usivc.B:1e supreme court has held '
that the provision of the Constitution is not sel.f-executing, but that
the power to enforce it is vested in Gongress. See Roberts v Reilly,
11.8.94. Lede544,q And 111 m-Q8 ' U¢B¢12'T,5O Lead-O _562,it was held that congressional action is emclnsive of action by y '
the States upon ell matters covered by the Act of Oongreeefbut to ~ -*
the extent that Congress may foil to exercise its full povors,suoh
powers may be exercised by ue States,
Up to the present time Congress has concerned itself only E"--*"
with the regulations under vhioh extradition nsy be mde by the ; - »
Ststes.It has prescribed the manner in which the charge shall be pre- --sentod and has provided that the executive authority oi the Stetc towhich the iugit vs has ed shell csuee his to be arrested and de- .
live:-ed up to the agent of the demanding 8tate.In construing that '
stetutep the Supreme Gourt hes held that th Gover-nor,cf whoa the de- .- * ,_-.-
mend is msde,"is not obliged to demand proof apart from the requisitios
papers from the demanding State that the sccused is s fugitive 1:-on
Justicc". See Illinois ex rcl.Io1lichcls v Peese,20'7 U.S.l00,52 I|qQe
l2l!Jlcv, it should he obvious that 11' a ooverner,in his discretion,
may ignore the issue of feet as to tin commission et a ori.m,ins]nd-- ;_
ing the issue of the rugitlveia presence in tin State at the time of s '
its comsiseicmdongrces would here unqusstieneble power te providethst all issues e1 fact shall be eliminated from extradition preceed- . ' - fings,an.cl limit the issue solelznge the legel sufficiency ct the in- ' _ in
dictsent er ettidavit in eharg a erine,uhiah would be determinable = . -
bythe1awse:tthe8tateuh.encetheaocusedhse1led. *~
There are oases which hold that "one arrested and held as a
fugitive from justice is entitled of r t,upon habeas corpus ,te quee-tion the lawfulness or his arrest and lrisonmentghcving by compe-
tent evidence,ss e. ground for his reloese,thet he vas not, within
31»
?:'o1'. Hols], 13.4. »
the meaning of the Conetitutlon and lama 01' the United 5tatea,o fugi-
tive from the justice or the deumding state . Ihet language no used
in Illinois oz rel, Eiolilohola V Peaeo. supra. but loses much force bo-
cmzee, in that oeee, the supremo Court snetaizn the right or the Gov--"
emor to grant extradition upon the proof contained in the extradition
papurl alone. Oertainly, the discretionary polars of a Governor do notexceed. the legislative powers or Congas, and it the Governor of:
stute Q ignore tin leeuu or toot an cart:-mlltioa. hea.ri.n.g,Congroea
woulohne the pone-to 1.:ln1t_!.t to mlnquiry into the anrrloleooy of
the orininnl oharp er indlousente
It I111 he observed that the extradition clause of the Counti-
tution mime no provision for aw holrlng within the state when the
fugitive is fo1:no,hat provides ooh for hla u-rest and delivery to the
agent of 11:0 State I*'OII the urine was mndtted; so, if the right to
a hearing within tho State of the fugitive: arrest may he said to em-
iet no oi right, it in due to tin failure of the Extradition Statlte
tomlne oi:herprovi.elou.'Fo1loui.n5 tin .1-ole inmmavrobin supra. tho reasonable a..:sunntion ll that by the omiaeion to extend. the tcam
to tin fall limits of oonatitutzlonal power, it must have boon intended
to_ loa1_re_ the eohjoeto unprovlded for not beyond the pale of o1l_laI,hnt
subject to tin power which than controlled than- State :mth.o:r1t1-
until it one deemed essential by !.m=thc1- léglslotlnn to govom_them
exclusively by national authorif-'3"'. 1h:.1t sale would give local oouz-ta
the power to In-'21: uni determine orrapl-mints in toga:-A to the Ialidy
or the an-est and iqar-increment, but upon fhn enactment or national
lo@let:i.on the pxwcemu-o preeu-iblad by Congress =ou1.1 ho oznnlnzetvetTherefore, if Congresé has plenary pa:-or ow-er the suhjzct, it has the
power to fix the Tome of 2:17 heerlzg to which the alleged mgltive my
he entltledmt course the Governor of the state when the rugltive la
fmmvi, in oeeaim upon the demand for extradition,-rvoié necoss ommidor the auttlelenoy otttn oririnal elm:-go,-ant that 1: 1 la
qnosti.on,e||:d Congress would,1n aw opiniongmw power to oliminah I11
issues of toot from nah inquiry at o plane zreztote £1-oa the scene If
the orime, whore the state ls haalioapperl by imlblllty to present oountor
evidemz-eumn of the 5|-eat deter:-onto to the enforcement at criminal _
law ha; been the facility with extradition has been avoided. I1rent-:3 lame: of toot in euoh pa-ooeed.lnge.lht:|P escape gggeouti-cl:
because or the look of public Poul: for the trenapowtat of wltaeeleo,
one iTIi¬5§i5fiiii?Bii ii oriwilito ioofieheltir-i-r
aayhm in foreign states. - A .
rishtofutraditlonhae been reeegnlaodty tin Styrene
tally irportentmot on]; to the vigorous enforcement of
rininel low, but also to the hanmnq and relfuw of the states.In Applqlrd 7 Iloondmeetta, uupm, the Court aid: é rho jmllohlnurhoritiel or the Uni; should oqueJ.11 cure the the 3 toneoi the Qormtifution be not so nm'1.*olr_=l_g intggro on to one . -
iJ-rt+2e':-=s --5-I-Qt ftI¬e gr;-."J5a¬_a -.= -.e.1:.T-n~:Im.. . to to-
was n.et"¬e p1'o¬eo 'E or eiind to those accused of o rlne. It
reeognlnee no right of thonocuaed othorthan that torlhiohhe in
entitled umlev the lam oi the Ltata under which he is charged. Its
solo p!11'p0lO in to enable each state to mlntaln law en.1m~oer.:-ent,onl it~.-ma not intended to not up or substitute erg foremn proooedlgufl
Lieu 01' its om tribunals. The purpose of this clause wee tore 1!
ritatt-H21 in Loeoellel 1 Geo.r~g1a,14=B U.-i3.5,5'l L¢od¢'.549, in which
4.D_1
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the preceding paragz-eph,e.nd the.
y rd ? -iassacrnsette, supra, we
interpretation er any statutory
tended to make the apprehension
such changes met he within the
stitutional Provision, but it is w opinion that Congress has not acted
to the full extent er its constitutional powers. is previously stated,
the constitutional provision does not limit or specify the mthoritiee
who may apprehend and deliver up the i'ngitive,hut the Extradition Stut-
ute dece linit such action to the executive authority oi the State where
the iH__§!,iti!e is io14~.d= '!'l..ie tern executive authority", I ass -s.n_nl Q-cludes its peace officers eheee duties are generally detined in the va-
rious state acts relating te fugitives tron Justice. For your convenience
I will s et forth the Extradition statute,cr Congressional ict,vhich nee
governs extradition between the Btatenlt is round in Section 662,i'itle
18,01 the United States Code Lnnotated,e.nd reads as tellers:Prof 1-""-"51! Pge 5e_ ~
the Court said: - s
rm; ee1e object of the provision of the Constitution
the Set or Congress to carry it into errect is to secure -
the surrender of persons accused or or-ime,who have fled from -
the justice of a State 'vhoac.1s.ws they are charged with
violating. Neither the Constitution nor the Act or Congress
providing for the rendition oi fugitives upon proper requi-
sitions being made cen£ere,either expressly or by implication,
any right er privilege upon such fugitives under and by virtue
errsvhich they can assert, in the State to which theyare re-
turned, exemption tron trial for aw criminal act done therein.
Io purpose or intention is manifested to afford then any inun-
nlty er protection from trial and punishment for any offense
c-emitted in the State fr-on which they flee. x we centrir-y,
the pro»-vision er both the Constitution and the statute extends
te all crimes and offenses punishable by the lees of an State
vhere the act is donc." l£entncl:y v Denniscn,65 us. 24 hoe.6g,lz.g%SlO2,l6 I-.ed.7l'!,'?27; El: psrte Rcggee, 114 U.3.642, 29 1.;
. e O 92
taking the declared purpose
rule
Yegtn Isa--an-s O-Q nl-Igluusel-Q Q ll!-mg;-1L-I-BIC J-BQBULI DU HJIUAULPUUU B J--ul-IJUJ--L
changes made by Congress that are in-
ef fugitives more effective. Of course
express or implied authority oi the con-ot the prevision,as set forth in
section 662.- Fugitives tron state or Territory. "Ihenever .
the executive authority of any State or territory demands anyperson as : ingitivettron Justice, of the e_zscu:.verslng§horitve_£ Staeerierrto tevhichsucpeu-son's e andpregeea c"ciy' eiFan'ioiaent tetuad er an affidavit nade
before a nsgistrete et any Btate er territory, charging the
persen demanded vith having coelitted treason, 1'elcny,er ether
:*;.t::-.:'m::.:'.: :::*:.., *,,..* ' .:'....'"'t..",°.i.. '= .:= 'charged has fled it shall es dn er the e_::ecjgtiv_e author-itl o1_ the Stste,or 'Ie_ rrI'ré1_to wEi%§"su¬hd__¬erson Hui Tied Cto cause Him to be arrest _ and _ cgeo ured__,en oimiske not'ice
oFEhe"srrest ad to Fe gfvin to the executive authority mak-
ing such demand, or to the agent ct such authority appointed
to receive the fugitive, and to sense the mgitive to be de-livered upt to such agent vhen he shall appear. Etc.,ete ."
5eof construction announced in 1pp1e-,5:
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PIOf. I01l'!,PBe 60
I an enclosing a separate memorandum containing excerpts from
cases under the extradition clause, ihich you may read if you desireei
Although the question of Federal authority to apprehend and deliver up
fugitives was not directly involved in any of them,thoy support,at leastn a general way,the theories I have sdvanced.Summarized brie£1y,they
old!
15 __I'I~-l- +15; 4-L492i92ulI -a1¥s92||n- u92iv92492&4-all-earn In AL use '$._l|1-in ll 92-I!-I-a 9iIi9292|-§92IJ;l *l-92"uLgqI||-all. Li: Iv.-4 D
but depends upon congressional enactments:
__ Amsulai-
2nd.- That the power of Congress to enforce such provision is
exclusive of State action,to the extent that the subject is covered by
congressional legislation:
3rr1.- That any omission of Congress to exercise its full con-
stitutional powers leaves the matters unprovided for subject to State
authority:
4th.- That Congress may,by further legislation, bring the en-
tire suhject matter exclusively under national authority:
5th.= That the solo ohjeot or the provision is to secure the
surrender of persons accused of crine,and the courts of the Union should
liberally construe the provision to the end of preventing fugitives from
finding immunity from prosecution by seeking shelter in another State.
Upon the foregoing principles,I believe the Federal Government
has authority under the Constitution to set up and maintain a police age:
cy in all of the States for the purpose of apprehending and delivering
up fugitives from Justice without intruding upon the ordinary police pole
era of the States.Snch agency would also have jurisdiction to make ar-
rests for violations of Federal laws,but would lack authority to make ar-
rests unior the laws of the States.However, I see no reason sh it could
be coordinated with state agencies in the work of crime dstection,so as
to render both more effective-I have noted the proposal of Senator Cope-
land for cooperative action between State and Federal authoritiee,=hioh
is said to have the approval of our Attorney General and his able assist-
ant, Mr. Koenan,under which the Governor of each state would recommend.{for appointment to the Federal Bureau a representative for his Statevho
would be paid by the Federal Government, but wno,ae a "dollar-asyear man
for the State, would he able to-utilize local police officers to Ioribe
»»s
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Prof. Holey, pg.?.
an increased Federal force could take its place.I am convinced that a
held annezcenent by the administration of its intention to establish a
nation~Iide police agency,under constitutional authority, to trails and
apprehend the interstate criminal,would strike terror into the hearts of
the criminal gangs and inspire public support in a degree that would lead
to greater cooperation and effectiveness than could be antioiplted under
a mere provisional agreement between state and Federal authorities.
I do not profess to he an expert upon Constitutional Law,althoug
the investigation of constitutional questions has been a pleasant feature
4;-P uni _¢_n4§l-In; Iiqu-nu; T -euueu1A -.s92¥ 441- ee-e ---Q s-use-In--lg.-In -angle-es-.5 Q-in-In Q L-I-e492J'J- Mu PLBL: DJ-DU. LLDZJVU. L IUILJ-kl LLUU QQU 5-Ly liq UPJJILUIL E511-L U-I-lZ>92I Q kl-II
learned Attorney General and his able assistante,if they should deem my
suggestions 11luBOrYeI would defer also to the conclusions of Senator
Copeland,nhose thoughtful study and courageous leadership of the Ilr
against crime has added to the esteem in which he is held throughout the
nation. I merely want to invoke their judgment upon the merits of mysuggestions. '
The assumption that a.Federa1 agency with power to srest and
deliver up fugitives could he created in derogation of the police poser
of the States,in m opinion, rests upon a misconception of the nature of
the pnstitutional provision. This provision,as I read it, is not a grant
of power to the States,nor is it a reservation of power unto thcm.0n the
contrery,it is a delegation or grant of power to the federal Government,
one which, according to the Supreme Court,may be made oxclusiye of $tate
authority.
In one particu1ar,the extradition clause is unique;it is the
only provision in the Constitution which expressly authorizes the perw
formance of a specific duty under the Federal Constitution by a State
officia1.By its terms,the executives authority of the State where the
crime was comitted is the one to demand extradition, but there is no
such limitation as to those who may be authorized to arrest and deliver
new-92 -I-M.-92 -F" ---16--lune fI'l'l-e4 I-It-I4- I--Inn I nqeqle we---»_-cg J-4.. I-1-92@ .-.-...-_.¢-&-l- s--I-.1-I-92_;<.!-ll-up I-JLLU .l.H.l_II:-l.U-I-I'UI-I-ll L-Ll-I-luLUBU-hve-I K!-L 9|-AMI-I IJUWUL IIU Ml-I-U UJLUUHULUU II-lllellJ.LJ|92|of the State where the fugitive is found is wholly statutory and is sug-
ject to change.Noe,if the framers of.the-Constitution had intended to
make extradition e prerogative of the States onhy, it is a reasonable
inference that they would.have specifically designated the executive
authority of the State where the fugitive is found as the one to arreet
and deliver him up, and such omission may indicate that they foresee
the possibility of nonecooperstion between the States, or other condi-
tions that night arise to make the remedy inadequate it its enforcement
were restricted solely to State authorities,and,there£ore, plenary pore
ere were given Congress to designate the arresting and delivering luv
thorities,und to prescribe the pocedure necessary to the rendition of
the prieoners.Whcther or not such a sitiation we within their contour
plation, the language of the provision contains no restriction upon
the powers of Congress to name the authorities who shall enforce such
prevision,or to determine the manner of its enforcement.
Reverting to the subject of State police power, I think it will
be conceded that theuelegation of a power to the Federal Government
carries with it the power to enact enforcing statutes,and oprates ee
a limitation upon,or withdrawal of,such power from the bod of the la!
known ae the police power of the State, a term which embraces the
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Prof. I516]; Peae
oyoten of internal regulation adopted by a State to preoerre publicorddr,and to afford protection to ite citiaona in the enjoynont of their
riahti ii i-"abort of oooiotyt Although th Eoder-...l ¬.'-orerraont ie said
to poeeeee no general or inherent police powere, it nay and doee excr-
ciee pewera which oorreepond to the ordinary police powere of the States
in carrying out ite delegated antheritieetlt my preoerihe and enforce ,_ _
penaltiee for wiolatione of ita lawn, but that doee not reproeent a uour- """""'potion or inwaaion of th power of tin Statoe. Therefore, if Cong:-eeo _,hae autherit to create a Iedcral agency with power to arreet and de-liver up fu¢{tiwee,the exeroiee of that power would not conflict with _ " '
t;an reeerred power of the 8tatee,un1eae liongreee ehould attenpt to an ,_
therire the rederal egeete te nave local. rrreete for per-:1: local o.
fllllle That eituatiomhowerer, can he avoided through a cooperative
underatanding hotween State and Federal authorittee, under which arreate
fer local effenoee would D node hy local effioialn.
I heliere th ahore plan hao thia adrantag over tb coepera- ' e
tire plan ouggeeted by Senator Copeland,riae that Congreae hoe au- 5 -
thority to dooiguate thoee who an arreet and deliwor up tin fugitire,itcould confer that power upon nonhere of the warioue State and nunicipal 1
police fereee affiliated with the Iederal Bureen, end increase the
nuaher of authorized arreeting effioere. thie pewer,if it oniete, ie de-
riwed eeloly fron the extradition olaaee,and in ng judgment would apply
only to fugitiwee fron JI't1Q.e Othern wanted by th Fedora]. Govenulont '-W-~
would have to be arrooted Dy Federal agente, in the aheence of any con-
etitutional prowieien authorising the oaerciee of ouch power hy State
police efficiale, hut the increaaed nunher of officere elegihle to arreet
fugitiwea ought to reduce the erpenee of the national gown-nnoat and at -+--
tho ee tine mltiply the effectiweneee of erine detection.
Iithont eta-pun; to otate the detailo er legielatiro renediea,I heliewe the extradition claaee of th Conetitution would authorise ' . 1 ,
the enerciee of the following poweree
lot.- that Gong-eoe new create a Federal __ lice____a;eno7 with an- 1 "thority to nrroot and deliwor up fugitieee :1-tquu to the executive '
authority of the dmnding State,upon th proof contained in the requi-
eition paperhand that ouch deliver! could he male by th federal a¢ente o W
without the aeeent of tb authoritioe of the State where the fugitive ie .II
found. The purpoee of extradition ie to enable the demanding State to 3.
enforce ite lawn,e;l it righta are parnnoui to thoae of the State where '?.Jthe accneod in found. _ '
Ill.» If th eaoent of tk executive authority of tb state into _which the fugitive hao fled aheald he deenod eeeential or adwioahle,con- ;.._
greee could reetriet ti extradition preeeediage to the deterninatien '. _
eolely of the legal eufficienoy of the indictnent or affidavit in charging
a crine,and could elininate therefrom all ioeuea of fact. '
Sr!» Oengreea namif it deeiree, preoerre uhte the Statee theirpreeent power to grant reguioitiena in proceedinre tint ariee within the
dutied of their local eff ciah,and my linit tin Pederal agento to thearreot and doliveq of the fugitiree to tin State author-itiee,euhjoct to
their action upon he requioition demand:
dtheo If a hearing upo: the application ehould be deenod neoco-
I
92
PIUfo HO]-BI. §£o .0 _
aary or expedient,ComgreeI would have the power to fix the venue of such
hcaringa,nnd could provide for then to be hold within the Btute where the
offense is chargad,ao that the witnesses would be available. I realize
that in o oloer case of mietaken identity,or where the proof is positive
that tho accused was not within the demanding 3tate at the time of the
orlue, extradition eorko e grievous wrong to the accused, but Congress
could provide for the restoration of ouch e party to hie former etetue
and place of obodl in tho event of o decioion in his favor on tlo right
to extredite, end thuo minimize the actual damage. In my judgment,the
possibility of occoeional injustice to an innocent party should not be
allowed to prevent chengco in procedure tint are ncceosery to check the
crine nenece= if hearing! ehould he outhorired in the State shore the
alleged fugitive io found,Congreao could have the right to designate the
tribunals to hear the oeoo,and could limit the issues to be determined
thorein,oo on not to invade tho right of the accusing State to have tho
recto determined therein.
5th.- Congreoo could authorize the Bureau of Inveetigation,or
other enforcement egency.to enter into arrangcnento with tb local police
in the various Steteo and citieo, under vhich each would share in the
work of crime detection,and each vould derive the full hcnefito thereof,
Thue,thooo ouepectcd of racketeering,kidneping,bank robbery and other vi-
olent crimeo,vou1d be broucht under the ourveilanoe of the Federal egento
end thio I consider justifiable upon the theory that they comprise the
criminal typco that are most actively enguged in interotate criminal ac-
tivitica. Pcdcral agcntc, although nominally iearohini fo= fugitieei and
Federal offenders, could impart valuable information to local authori-
tiee that could load to more effective low enforcement.
6th.. Sono epeciol provision should be lode for the orrcet and
detention of ouopeoto pending identification. The canoe of many of thenare unknown,oo that they cannot be opecifioel%i.nnood in o fornnl charge,
and the facility vith which they eeoepo from oceno of the crilo hao
rendered peroonl identification more difficult.Tho comparison of finger
prints, c..._.be'-1 col e__e-lyeeeiend ct-l~.er eeientiiie mthode of crine detection
often afford th only neon of idontificotiomand thy require tine.Coneo-
quontly,e are liberal period for the detention of ouspecto should be
provided. _
tn.- Upon ti question of ooil,i believe Congress should pro-
vide thet whore the defence io on elibi,tho eocuoed oholl not be admitted3; 25:1 i{.there io any oubotontiol evidence of hie preeence at the occne
G1 In
8th.- fho Federal agency ohould be lhoited to the more violent
crhnoo agninot persona and prcperty,oueh no 1idnepin¢,rncketeorin¢,bent
robbery, highway robbery, onrder, etc.
I realize that objections will
upon the theory that it night be used to intervene in purely local con-
troversies in th Stetee.Thia, I think, can be obviated by specifically
limiting their ectivitioo to certain offenses and by forbidding their
use otherwise.h -.-I4 L4 _ TQ¢..I___Q _ _ _ $ino mono nu n l-corral agency9.5
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, I92A great dee1,if not all-.01 tle foregoing in Ir impractical-
I do not insist upon the visdoa of the detailra euggootcd,b'1t have men-
tioned thm only from the ctcucpoint of 1@s1=1»='¢1'~o rower-I micro ohonzo
my mind
occ toas to the expediency em} legality of some of thcmdi I>92921'P°BB hi
present the theory that the t:i$".i":i.f!lt'§.92'il": clause or t& =3onstit::=
tian con:-gr; .1 power on Congrcszharound which there may in built up a
l~odore.l crime detecting agency that could he made effective against the
criminal clue. Out ef my suggestions you my he ahlo to curve some snork-
ahlc idee tint would give the national exotic; more etehilitg than it
would have ee e. mere volunteer organiee.tio!|,or oven es an adjunct of an
agency for tie epproheneion of Federal offenders. I an firm}; convinced
that re need en American Scotland rm-d.e",ir th gangster and interotate
criminal are to he otu-bed. America. is with the Prcsidcut in his deter-
zolnatioa to make D%cr=-a safe for tts World. I am folio»-dag hind.-ed
my suggestion: are rude through e desire to aid in the restoration of
la! end order under hie great moral leadership.
I cone not te e queetion tint is more novel than my previoue
euggeetionml en going to present it to you,elthou=3h it prolongs my
letter beyond the limite of ordinary proprietymccauee it offers on
alternative which, if legal, would dispense with the red-tape and cum»
beraone
erhet-her
mako it
to floemachinery or extradition proceedinga.Briefly,thc question is
Qongrceeicrtder ite pore! to eriorce the eztroditice cL_1ueeccould
a Federal offence for e pereou eho cozmite e crime in on state
into another for th purpose of avoiding arreet and prosecution.
Hy first impression of the subj cet as uni-orvorahle, but further thought
has convinced no that it is not without merit. I hr.-re di actissed the mat-
ter with other nanhcre of the har, who have the cote reactions, ao
I desire to euhuit it to you for your consideration.
I frankly concede tint the Federal Government has no direct
grant of power to punish any poreoe for lccrieg ode Stete -chd gtering
anothcr,hut th purpose of on not tilt le i|mooent,o1 itcelfmeu taint
the act with illega1ity,Ae en llluetz-aticn,I cite th Home Act.Fe lepl
wrong ll comitted Lt e men transports e eonen ecrece e State liec,hnt
it he doc: eo for purpceee of concuhinolotit h-sconce e puniehehle
mt upon the thoo-:7 that ¢92Tri'ii;i"i:ii iii rig-ulctc the i-T"Bl hchorior
citizcne,out became e the particukar act hear-e e relation to tin po
Congress to regulate interstate oomerce. I do not say that the
to punish the flight or e ozrininel exiete under the interstate cenecrceof the
per of
er
olauee,e1tho92_1g,h tlnjourte here gone
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