Section 242 also reaches a State official who willfully acts so as to deprive a person of the equal protection of the laws. Official refusal on racial grounds to permit Negro children to attend a public school with white children would be a denial of the equal protection of the laws. Such refusal could lead to prosecution under section 242. Official separation of races on a public transportation system also denies equal protection of the laws and could likewise be prosecuted under that statute. In Lynch v. United States," it was held that the phrase "equal protection of the laws" includes the right of a prisoner to protection from the officer having him in charge and, also, a right to be protected by such officer against injuries by third persons. In other words, according to this case, if an officer willfully turns a prisoner over to a mob or willfully permits a mob to take a prisoner from his custody, he is guilty of violating section 242. Thus, the Lynch case supports the proposition that willful official action and willful inaction resulting in the detail of equal protection may be penalized under the section. There seems to be no doubt but that the theory of this case would apply in other instances. Perhaps a good example would be the refusal of a State officer to permit a member of a minority group to engage in lawful work or the willful failure or refusal to restrain others attempting to deny him this right."

APPLICATION OF SECTIONS 241 AND 242 TO ELECTIONS

Since 1884, it has been clear that the provisions of section 241 secure and protect the right granted by article I, section 2 of the Constitution to vote in Federal elections." Later, in 1915, in the Mosley decision (supra, note 12), the Supreme Court extended the protection of the section to the right to have one's vote honestly counted. In 1941, the Court, in United States v. Classic (supra, note 15), included within the constitutional guarantee the right to vote and to have the vote honestly counted in a primary election involving candidates for Federal office where such primary is an integral part of the election machinery or success therein is equivalent to election. Also, said the Court, the right to particpate in such a primary is a right secured by both section 241 and section 242.

50

A most important and far-reaching result of the Classic decision is that it led to a reexamination by the Supreme Court of the "white primary" system which, for a long time, had been used in the Southern States as a device to deprive Negroes of an effective voice in the electoral process. Prior to Classic, the Court, in Grovey v. Townsend, had held that the exclusion of a Negro voter from a party primary, pursuant to political party regulations, deprived him of no right guaranteed by the 14th or 15th amendment. After the Classic decision, the Supreme Court recognized that primary and general elections had been fused into a single instrumentality. The Court, therefore, overruled Grovey v. Townsend in Smith v. Allwright and held that racial discrimination by a political party adopted, enforced, or permitted by a State is State action forbidden by the 14th and 15th amendments. This decision opened the way for Negroes to vote in primary elections whether they involve State or Federal candidates or both.

51

The courts have resisted any and all attempts to evade the plain implications of the Allwright decision. Following that decision, the State of South Carolina repealed all of its primary laws and thus attempted to leave the matter of holding primaries and the qualifications to vote therein entirely to the discretion of political parties or groups. But the Court of Appeals for the Fourth Circuit held that a primary under such auspices is, nevertheless, one of a two-step election process and that, consequently, the exclusion of Negroes from such primary, because of party rules, is State action constitutionally forbidden.52 Similarly, the exclusion of Negroes from an unregulated preprimary held by an unregulated political association to endorse persons intending to participate as candidates

45 Brown v. Board of Education, 347 U. S. 483 (1954): 349 U. S. 294 (1955). See Brewer v. Hoxie School District, 238 F. 2d 91 (C. A. 8, 1956).

Browder v. Gayle, 142 F. Supp. 707 (D. C. M. D. Ala., 1956), aff'd per curiam, 352

U. S. 903 (1956).

47 See note 29, above.

See Truax v. Raich, 239 U. S. 33 (1915).

Er parte Yarbrough, 110 U. S. 651.

50 295 U. S. 45 (1935).

51 321 U. S. 649 (1944).

62 Rice v. Elmore, 165 F. 2d 387 (1947), cert. den., 333 U. S. 875 (1948); Baskin v. Brown, 174 F. 2d 391 (1949).

in a regular Democratic primary was recently struck down by the Supreme Court as State action violative of the 15th amendment.

58

The situation respecting the applicability of sections 241 and 242 to elections and the right to vote therein may be summarized as follows:

1. In primary and general elections involving candidates for Federal office, conspiracies to deprive individuals of the right to vote and to have their vote honestly counted may be punished under section 241. The section applies whether the conspirators are private persons, officials, or both.

2. In such elections, a deprivation, by persons acting under color of law, of the right to have the vote honestly counted is punishable under section 242.

3. In such elections, a single private individual may not be punished under either section. However, a private individual who infringes or attempts to infringe the right to vote in a general election involving Federal candidates is subject to punishment under the provisions of title 18, United States Code, section 594.

4. In primary or general elections involving only State or local candidates, State action denying the right to vote because of race is contrary to the 14th (Nixon v. Herndon, 273 U. S. 536) and 15th amendments. Such action may, therefore, be punished under section 242. However, it would represent no violation of section 241 under the opinion of Mr. Justice Frankfurter in Williams v. United States (supra, note 3) (cf Guinn v. United States, 238 U. S. 347).

INVOLUNTARY SERVITUDE, SLAVERY, AND PEONAGE STATUTES

The Emancipation Proclamation issued by President Lincoln on January 1, 1863, freed all the slaves but did not destroy slavery; it merely outlawed it in certain States. To end forever the institution of slavery, a constitutional amendment was necessary. On February 1, 1865, therefore, the amendment that was to become the 13th amendment to the Constitution was submitted by the 38th Congress, and ratified on December 18, 1865. In simple but eloquent terms, the 13th amendment declares that:

"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

Every form of compulsory service, including serfage and peonage, as well as slavery, clearly was abolished by the amendment. It denounces a condition and reaches every race and individual within the national jurisdiction." Without implementation, however, the executive branch of the Federal Government was powerless to act in situations involving forced labor. Only the judicial branch, by virtue of its jurisdiction in civil or appellate matters, would have authority to apply and effectuate the paramount law, but only after the aggrieved persons instituted private and legal action or appeal from State action. Legislation, therefore, was necessary to give the amendment full force and effect.

Accordingly, Congress, on March 2, 1867, enacted the Peonage Abolition Act, entitled "An act to abolish and forever prohibit the system of peonage in the Territory of New Mexico and other parts of the United States." The criminal provisions of this act, now contained in section 1581, United States Code, are as follows:

"(a) Whoever holds or returns any person to a condition of peonage, or arrests any person with the intent of placing him in or returning him to a condition of peonage, shall be fined not more than $5,000 or imprisoned not more than five years, or both.

"(b) Whoever obstructs, or attempts to obstruct, or in any way interferes with or prevents the enforcement of this section, shall be liable to the penalties prescribed in subsection (a).”

On May 21, 1866, the President approved the so-called Slave Kidnapping Statute, now section 1583, title 18, United States Code. It provides:

"Whoever kidnaps or carries away any other person, with the intent that such other person be sold into involuntary servitude, or held as a slave: or

"Whoever entices, persuades, or induces any other person to go on board any vessel or to any other place with the intent that he may be made or held as a slave, or sent out of the country to be so made or held—

"Shall be fined not more than $5,000 or imprisoned not more than five years, or both."

53 Terry v. Adams, 345 U. S. 461.

Hodges v. United States, 203 U. S. 1, 17 (1908).

The third and last statute dealing with involuntary labor is section 1584 of title 18, United States Code. Despite its title, "Sale Into Involuntary Servitude," it also covers the holding of another to involuntary servitude, which was added by the revisers of the 1948 Criminal Code to the provisions of the previous statutes. Section 1584 provides as follows:

"Whoever knowingly and willfully holds to involuntary servitude or sells into any condition of involuntary servitude, any other person for any term, or brings within the United States any person so held, shall be fined not more than $5,000 or imprisoned not more than five years, or both."

A. Peonage

The purpose of the Antipeonage Act of 1867 (18 U. S. C. 1581) is to outlaw peonage, a status or condition of compulsory service based upon the indebtedness of the peon to the master. The basal fact is indebtedness." The condition

exists, therefore, where a person is compelled by force or threat of force to work for another in payment of a debt. The amount of the debt and the means used to coerce the victim are immaterial. In addition to prohibiting peonage, section 1581 prohibits the return of a person to a condition of peouage; the arrest of a person with the intent of placing him in a condition of peonage; and the arrest (not necessarily under color of law) of a person with the intent of returning him to a condition of peonage."

Perhaps the most common type of complaint received in the Civil Rights Section in the field of forced labor involves the arrest of an employee who has just left or is about to leave the employment. The arrest is usually predicated upon a minor larceny or other minor offense, and its evident purpose is either to punish the employee or to place him in fear of prosecution so that he will return against his will to the employment. If the arrest is followed by efforts to return the employee to the place of business or the farm, it may be found that the arrest was made with the intent of placing the employee in a condition of peonage.

B. Involuntary servitude and slavery

There are many situations which cannot be reached by the Antipeonage Act, but which are prohibited by the 13th amendment and constitute violations of the statutes dealing with involuntary servitude and slavery (18 U. S. C. 1583 and 1584). The fundamental difference between the peonage and the involuntary servitude and slavery statutes lies in the element of debt, which is not a part of the offense under the latter statutes. As stated above, it was not until the revision of the Criminal Code in 1948, that a holding, as such, would constitute a criminal offense. Apparently for this reason, and because of other inadequacies of the involuntary servitude and slavery provisions, a body of case law has been built up under section 1581 while the other statutes have been relatively neglected.

Perhaps the most important case, and the only reported case, decided under the involuntary servitude or slavery statutes is United States v. Ingalls, involving provisions of what was then title 18 United States Code section 413 now title 18 United States Code section 1583. Defendant Ingalls was convicted under an indictment charging that on or about October 11, 1946, she and another "did entice, persuade, and induce another person; namely, Dora I. Jones, to go from Berkeley, Alameda County, to Coronado, San Diego County, Calif. *** with the intent that Dora I. Jones, be held as a slave." In the defendant's motion for a new trial, the district court's definition of the term "slave" was challenged. The court reviewed the evidence and showed that for about 25 years the defendant had kept the victim in her household as a servant. During this period the victim was required to arrive early in the morning and perform practically all the household labor in the defendant's home. She was forbidden to leave except to perform errands and required to work long hours without compensation. Poorly fed, she was denied the right to have friends, and was physically abused on several occasions. When she expressed a desire to leave, the defendant reminded her of an adulterous relationship which the victim had in the past with the defendant's first husband and of an abortion to which she, the victim, had submitted. This threat of exposure and prosecution held over the victim kept her in slavery, although the misconduct had occurred 38 years previously.

Clyatt v. United States, 197 U. S. 207, 215 (1908).

Pierce v. United States, 146 F. 2d 84, cert. den., 324 U. S. 873 (1945).

United States v. Gaskin, 320 U. S. 527 (1944).

United States v. Ingalls, 73 F. Supp. 76 (S. D. Calif., 1947).

The victim had come into the service of the defendant at the age of 17 and had been in fear of the defendant throughout the years. When she did try to leave the defendant, it was only at the inducement of the defendant's daughter who had her leave the family automobile in which she was required to sleep during a cross-country trip, and complain to a member of the Berkeley, Calif., Police Department, in whose presence the defendant renewed to the victim the threat of exposure and because of these threats, she returned to her employment with the defendant. The district court concluded that she was "one who had no freedom of action and whose person and services were wholly under the control of defendant and who was in a state of enforced compulsory service to the defendant" and, therefore, was a slave within the meaning of the statute.

It should be noted that prosecution could not have been undertaken in this case under any theory, had it not been for the fortuitous circumstances that the victim left the condition of slavery for a very short period of time in 1946. At the time of the holding of the victim, a holding in involuntary servitude as such was not an offense, and it was necessary for the prosecutor to find a break in the continuing condition of employment to permit the use of the provision which makes it an offense to entice, persuade, or induce another to go any place with the intent that he be made or held as a slave. Her visit to the police station and the subsequent threats of the defendant which caused the victim to return, made the statute apply. Today, of course, Ingalls could be prosecuted under section 1584 for the holding as such. The peonage statute would not have been appropriate, since there appears to have been no debt involved in the case. Aside from the general conspiracy statute (18 U. S. C. 371), section 241 of title 18, United States Code, may be used in the enforcement of the forced labor statutes. Section 241 protects citizens "in the free exercise or enjoyment of any right or privilege secured" by the Constitution. Since the 13th amendinent guarantees to all persons the right to be free from slavery or involuntary servitude, it was held in Smith v. United States," that these rights are secured to every person within the jurisdiction of the United States and a conspiracy to deprive any citizen of the free exercise or enjoyment of such rights is indictable under the statute.

ELECTION STATUTES

Among the duties of the Civil Rights Section is the troublesome task of enforcing the Federal laws having to do with elections and election campaigns. The Federal election laws, unfortunately, do not fall into any logical pattern. They outlaw activity ranging from the stationing of troops at polls to the mailing of anonymous campaign literature and yet do not control the actual mechanics of conducting elections. A brief history of Federal legislation in this field with reference to some of the more important problems which we face in enforcing the laws may be of interest.

The Constitution provides in article I, section 2, for the popular election of Representatives and, since the passage of the 17th amendment, for the popular election of Senators. The qualifications for voting in these elections, it is provided, shall be the same as the qualifications for voting for the most numerous branch of the legislature of the State in which the voter resides. Article 1, section 4, provides that the States shall determine the time, place, and manner of conducting these elections, but that the Federal Government may at any time make or alter such regulations. It is upon these constitutional provisions that all election legislation, except that pertaining to Government employees, must rely.

Until 1870, with insignificant exceptions, Congress did not utilize its constitutional right to legislate in the election field. After the Civil War, however, the reconstruction Congress, motivated in part by a desire to protect the Negroes in the South from disenfranchisement, passed the Enforcement Act" which provided for complete supervision by the Federal Government of all elections in which Federal candidates were to be elected. The act outlawed every type of fraudulent and corrupt practice and provided for the stationing of Federal supervisors and Federal marshals at the polls on election day.

59 Smith v. United States, 157 F. 721 C. A. 8, 1907, cert. den. 208 U. S. 618 (1908). Such as an act of 1867 prohibiting Government officials from exacting political contributions from workers in Navy yards (14 Stat. L. 492) and the act of 1842 providing for the election of Congressmen by districts rather than by statewide elections (5 Stat. 491).

81 Act of May 31, 1870 (16 Stat. L. 140) entitled, an act "to enforce the legal right of citizens of the United States to vote in the several States of this Union." Amended by act of February 28. 1871 (16 Stat. L. 433). Together, these statutes are referred to as the Enforcement Act.

Although the Enforcement Act had been held by the Supreme Court to be a valid exercise of Federal authority under section 4 of article 1, of the Constitution, the advocates of States rights argued that the court had erred and that the conduct of elections was not an appropriate field for Federal legislation. Their efforts resulted, in 1894, in the repeal of practically all of the Enforcement Act. The repealers overlooked, however, two rather innocuous appearing sections of the act" which have survived as sections 241 and 242 of title 18, United States Code.

The Enforcement Act had been repealed for only a few short years when the need for an entirely different type of Federal regulation of elections became apparent. Although the States were competent to cope with the mechanical problems operating the polls on election day they were powerless to regulate the election campaign activities of powerful national interests whose expenditure of vast sums to influence the outcome of national elections was causing concern to many.

In the bitterly contested 1896 election it was estimated that $16 million, an astronomical sum in those days, had been spent to propagandize the electorate. The public was shocked when the young Charles Evans Hughes, investigating for the Armstrong committee in New York, disclosed huge contributions by insurance companies to influence the 1904 elections.

65

As a result of these disclosures, Congress passed a bill in 1907 prohibiting corporations from making contributions in connection with political elections. As amended to pertain to labor unions as well as corporations," this statute now appears as section 610, title 18, United States Code.

In addition to barring the use of corporate funds, Congress, in 1911, imposed a limitation on the amount any candidate for a Federal elective office could spend in an election campaign. At the same time, Congress sought, by the passage of a bill requiring the filing of financial reports by Federal candidates, to subject campaign financing to the spotlight of publicity. As amended by the Corrupt Practices Act of 1925, the provisions limiting campaign expenditures and the provisions requiring financial statements appear now as sections 241 to 248, of title 2.

United States Senator Newberry, of Michigan, in his campaign for reelection in 1918, together with, his friends, spent more than $100,000 for his nomination and election. The prosecution which resulted succeeded only in casting serious doubt on the constitutionality of the statute which limited political contributions insofar as it applied to primary elections. The Supreme Court divided 4 ways on the question of the power of the Federal Government under section 4 of article I of the Constitution to regulate primary elections," and in the light of this confusion, the Congress followed the simple expedient of amending the law so as to make it inapplicable to primaries and political conventions. The new bill, known as the Corrupt Practices Act of 1925, also codified the meager Federal law relating to elections and added a section prohibiting the soliciting of funds by 1 Federal office holder from another."

As amended to apply only to general elections, the Federal laws limiting campaign expenditures, prohibiting corporate contributions, and requiring the filing of financial statements lost much of their effectiveness. In the Southern States, where the primary election is all important, they became a virtual nullity. Although the Supreme Court has indicated in the case of United States v. Classic, decided in 1941, that the Federal Government does have the power to regulate Federal primaries under certain circumstances, Congress has taken little action to plug the loopholes in the Corrupt Practices Act, which the Congress created following the Newberry decision. A notable exception, however, is the Taft-Hartley " amendment to the Corrupt Practices Act, which, in addition to barring campaign contributions by labor unions, extended the prohibition against corporate and union contributions to cover primary elections.

71

Er Parte Siebold, 100 U. S. 371, 1879.

28 Stat. 36.

Secs. 6 and 17, originally sections of the Civil Rights Act of 1866.

34 Stat. 814.

70

Made temporarily applicable to labor unions by the War Labor Disputes Act, s c. 9. Amended by the Labor Management Relations Act of 1947, sec. 303. Newberry v. United States, 256 U. S. 232.

Sec. 312, Corrupt Practices Act, now sec. 602, title 18. 313 U. S. 299.

Discussed above under sec. 241 of title 18, U. S. Code. "Labor Management Relations Act of 1947, supra.