amendment was not a guarantee with reference to the property rights of individuals in the District and there is an argument based on that because there is a case in which a statute was passed and while it was not applicable to the States, it was held that it was applicable to the District of Columbia.

That is, of course, true, because so far as the District of Columbia was concerned, the Supreme Court held that Congress legislated under its general power and under its District jurisdiction, and not under the interstate commerce clause, and while it could not be sustained under the interstate commerce clause with reference to the various States, it was sustained under the general power of Congress under its general powers and under its District powers.

The history of these amendments, too, is very clear. When it came to the ratification of the United States Constitution, there were a number of the States, including New York, as I recall it, that delayed very much in the ratification of the Constitution of the United States, and there was an agreement reached prior to the ratification that certain amendments should be attached, and you remember the first 10 amendments to the Constitution were passed almost immediately, in 1790, after the formation of the Government, and one of these amendments was the fifth amendment:

No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.

In the Federalist papers, which I could not lay my hands on this afternoon, I remember that that was fully discussed, and it was felt by Alexander Hamilton and other proponents of the Constitution that these guarantees existed in the Constitution as originally written, but some people were very nervous, so these amendments were adopted for the purpose of protecting the citizens of the United States against the abuse of governmental power.

So far as the District and its citizens are concerned, they come within the protection of the fifth amendment, which says "no person," and that language has been interpreted time and again-no person means any person within the jurisdiction of the United States

No person shall be deprived of liberty or property without due process of law, nor shall private property be taken for public use without just compensation.

The fourteenth amendment had a totally different thing in mind. It was designed primarily to protect the freed African slaves of the South after the Civil War and was passed in 1868, and apparently this discussion as to whether people are entitled in this District to the protection of the guarantees of the Constitution is based upon the language of the fourteenth amendment without due consideration of the fifth amendment, because the fourteenth amendment

says

all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State wherein they reside.

The language, you see, is what it is and has been interpreted

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.

This guaranty does not apply to citizens of the District of Columbia and they are without the protection of the fourteenth amendment, in all probability. There is not much question about that but it was intended to restrain the States, particularly, that had been engaged in the rebellion from infringing upon the rights of the newly created citizens.

So much for the particular question involved on the question of the District of Columbia, although there are some cases here that I would like to go into a little further.

Capital Traction Co. v. Hoff (174 U. S., p. 1) was a case that went up from your own court of appeals to the Supreme Court, and it was held that

The Congress of the United States, being empowered by the Constitution "to exercise exclusive legislation in all cases whatsoever" over the seat of the National Government, has the entire control over the District of Columbia for every purpose of government, national or local. It may exercise within the District all legislative powers that the legislature of a State might exercise within the State; and may vest and distribute the judicial authority in and among courts and magistrates, and regulate judicial proceedings before them, as it may think fit, so long as it does not contravene any provision of the Constitution of the United States. (Kendall v. United States (Stokes) (1838) 12 Pet. 524, 619 (9: 1181, 1218); Mattingly v. District of Columbia (1878) 97 U. S., 687, 690 (24: 1098, 1100); Gibbons v. District of Columbia (1886) 116 U. S., 404 (29: 680. 681).)

This seems pretty clear. Then the court says:

It is beyond doubt, at the present day, that the provisions of the Constitution of the United States securing the right of trial by jury, whether in civil or in criminal cases, are applicable to the District of Columbia.

And that is just one of the guaranties of the amendment, and if that applies all the others do.

In the case of Lansburg v. District of Columbia the Court of Appeals of the District in passing upon the constitutionality of an act of Congress prohibiting gift enterprises, and holding it constitutional, said:

It is not denied that the power of Congress to legislate in respect of matters affecting the public health, safety, peace, and morals within the District of Columbia is the same as that of the State legislatures within their several jurisdictions. It is neither greater nor less, for "all of the guaranties of the Constitution respecting life, liberty, and property are equally for the benefit of all citizens of the United States residing permanently or temporarily in the District of Columbia as those residing in the several States of the Union." (Kerr . Ross, 5 App. D. C., 241; Callan v. Wilson, 127 U. S., 640.)

That statement must be taken with the modification that that is true with reference to the Constitution but not including the fourteenth amendment.

Representative BLANTON. General, if you will permit me, is not the reason they left out the District of Columbia in the fourteenth amendment due to the fact that the Government itself exercised full authority under the Constitution here in the District of Columbia and would be able to protect the very people they were seeking to protect?

Mr. MACCHESNEY. Precisely so. As soon as military control in the South ceased the Government wanted to make sure that the State legislatures there would not undo the effect of the Federal enactment, and these amendments were passed for the purpose of protecting the colored people of the South against adverse State legislation.

Representative BLANTON. And the Government and Congress would protect them here in the District.

Mr. MACCHESNEY. Yes.

In the case of Howard v. Illinois Central Railway Co. (207 U. S. 463), in which case the Supreme Court of the United States held unconstitutional the employees' liability law, except in so far as it applied to the District of Columbia and Territories, the court used this language:

But if we could bring ourselves to modify the statute by writing in the words suggested, the result would be to restrict the operation of the act as to the District of Columbia and the Territories. We say this because immediately preceding the provision of the act concerning carriers engaged in commerce between the States and Territories, is a clause making it applicable to "every common carrier engaged in trade or commerce in the District of Columbia or in any Territory of the United States.

It follows, therefore, that common carriers in such Territories, even although not engaged in interstate commerce, are, by the act, made liable to "any" of their employees, as therein defined. The legislative power of Congress over the District of Columbia and the Territories being plenary, and not depending upon the interstate-commerce clause, it results that the provision as to the District of Columbia and the Territories, if standing alone, could not be questioned. This is along the line of the matter I have just been discussing. It seems to me in the light of these decisions coming down through the series of years from the Dred Scott decision to within the last few years, as late as 207 United States, there can not be any question about either the authority of Congress over the District or the limitations of that authority.

Have I answered your question, Senator?

Senator JONES of Washington. Oh, yes; that confirms the view I had with reference to the powers of Congress over the District of Columbia.

He

Senator COPELAND. Senator, there was one statement that the general added, and I am not sure it did confirm your views. said it confirmed the power as well as the limitation. General, suppose in a nutshell you just give us the limitations. Is it your view we can go only as far as we do in the States; that is, can Congress go in the District no further than that?

Mr. MACCHESNEY. The only difference in your power is the difference between the fourteenth and the fifth amendments.

In so far as the fourteenth amendment may be considered as strengthening the fifth amendment, to that extent the State is under inhibitions which you are not with reference to the District, but that difference is very slight, and in my judgment has nothing to do with the matter which we are discussing to-night; that is, rent-control legislation. Senator JONES of Washington. As I understand it, Congress can exercise all of the powers that it has under the Constitution to exercise general authority over the United States and also the powers that the States have within their jurisdictions.

Mr. MACCHESNEY. Absolutely; but it is not free from or above the Constitution.

Senator JONES of Washington. No; with reference to due process of law and things like that.

Mr. MACCHESNEY. That is precisely it.

Representative BLANTON. And as I understand it, Congress can do no more in the District than it and a State could do in a State acting together under a law like the Volstead law, for instance. Mr. MACCHESNEY. Absolutely not. That is perfectly true. Senator COPELAND. Then we have to approach this thing, General. from exactly the same standpoint as we would in Illinois or in New York with the legislature making the law instead of Congress.

Mr. MACCHESNEY. I would not go quite that far. I would a little rather not be asked that question, because I am sure it would be misunderstood, but I am going to try to answer it.

Senator COPELAND. If it embarrasses you, General

Mr. MACCHESNEY. No; but what I mean by that is that I am afraid what I say will be taken as going beyond what I intend. I argued the constitutionality of the draft act for the War Department during the war. I remember a statement in that brief which I wrote in which I said that the power of Congress was coextensive with the national necessity in time of emergency.

Now I say that what you say is absolutely true, that you have no more power than any State legislature has, unless the conditions are so peculiar and so acute, and there is a nation-wide emergency, such as there was during the war, when probably the National Government has a power over and above and beyond what a State legislature would have, because it would contribute to the power for the national defense upon which there are no limitations. I do not want to be misunderstood about that.

I do not think there is any such emergency. I do not think we are in any such acute situation. We are past the war and a lot of other things, and I do not think it applies, but when you ask me that question, Senator, I try to answer it to the best of my ability as to what I regard as the distinction between the power in the respective powers.

Senator COPELAND. There is not any doubt in my mind, General, that the State of New York has the power in an emergency which affects the health, morals, and general welfare of the people, to pass. any sort of legislation, and I have not any question that the Congress can pass such a law, and I suggested at our first meeting that the word "existing" be inserted in line 4-"made necessary by reason of existing rental conditions"-trusting to the testimony to bring out that there is such a situation here as justifies the rest of the preamble of this bill, but, of course, the author of the bill did not want to put it upon the emergency but upon conditions which are permanent. I have not any doubt that in an emergency we could do this, and perhaps there is an emergency now, but it is the desire of those interested in this bill to have a permanent rent law in the District, and I would be glad for myself if you would address yourself directly now to the question of whether or not, in view of what you have said to us and the authorities you have quoted, there is power in the Congress to pass such a permanent law for the District. Mr. MACCHESNEY. That is a question which neither I nor anybody else can answer until after it has been passed upon by the Supreme Court of the United States authoritatively, but in my

judgment, as I stated this afternoon, this legislation goes so far beyond the legislation which has been sustained that in all human probability, the Supreme Court would declare it unconstitutional. I would like to state the reasons for that belief.

First, with reference to the preamble to which you referred, one of the gentlemen this afternoon asked me about the language of that preamble and the reasons for including it, and I stated that it seemed to me it was intended to get away from the Chastleton case and help to sustain the law, because in the Chastleton case the court said that from facts that the court knew of its own knowledge, if the matter were before them they would not regard the emergency as being such as to sustain the law, and undoubtedly the drafter of this act intended to get away from the emergency and to base it upon a permanent

condition.

With reference to the preamble in the bill setting forth the necessity because of public health, comfort, morals, peace, and welfare, Mr. Justice Sutherland, in Muller v. Oregon, 243 United States, said:

* *

A state statute forbidding the employment of any person in any mill, factory, or manufacturing establishment more than 10 hours in any one day was sustained on the ground that since the State legislature and State supreme court had found such a law necessary for the preservation of the health of employees in these industries, this court would accept their judgment in the absence of facts to support the contrary conclusion.

In other words, with this statement in the bill, if it went to the Supreme Court of the United States, in the absence of evidenc on either side, the Supreme Court would accept the congressional statement as to the necessity of the act.

Senator COPELAND. The same as they did in the Marcus Brown Holding Co. case-the New York case?

Mr. MACCHESNEY. Yes; I know that case. We have another case here along the same line, Lansburgh v. District of Columbia, which says:

In matters of this nature the discretion of the legislature is very large and a very fair presumption is to be indulged in favor of power as exercised. (Powell v. Pa., 127 U. S., 678.) It is seen, therefore, in a case where the statute purporting to have been enacted for the protection of the public health, safety, peace and morals, "has no real or substantial relation to those objects or is a palpable invasion of the rights secured by the fundamental law that the courts will declare it void.

In other words, this statement in the absence of evidence, would suffice, but if contradicted by evidence, it would be entirely futile; and if evidence was put in to contradict it, you would have to put in evidence to sustain it, so it is not final at all.

In the Chastleton case, they held:

We repeat what was stated in Block v. Hirsh (256 U. S. 135, 154), as to the respect due to a declaration of this kind by the legislature so far as it relates to present facts. But even as to them a court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared. (256 U. S. 154. Chas. Wolff Packing Co. v. Court of Industrial Relations, 262 U. S. 522, 536.) And still more obviously so far as this declaration looks to the future it can be no more than prophecy and is liable to be controlled by events. A law depending upon the existence of an emergency or other certain state of facts to uphold it may cease to operate if the emergency ceases or the facts change even though valid when passed."

Senator COPELAND. General, that would be true when the measure itself was founded upon the fact that there was an emergency.