have before you now applicable by way of reconstruction to previous legislation.

Mr. WALTER. Is that not merely a statement of existing law?

Mr. WYMAN. I think it is more than that because I think it shows that this Congress does not intend that the broad doctrine of supersession by implication should be held merely because Congress has legislated in a field in which it is empowered by the Constitution. I do not think Congress can legislate except in the fields in which it was specifically granted power under the Constitution. I think articles IX and X of the Constitution are very clear that the powers not expressly granted to the Federal Government are reserved to the States. Congress comes in through the commerce clause and the general welfare clause, and when Congress legislates outside of those fields I think you will find they cannot supersede State law. Mr. HYDE. Mr. Chairman.

Mr. WALTER. Mr. Hyde.

Mr. HYDE. There is no express provision in the Constitution with respect to the power to control or regulate, if you please, treason or subversive activities. The Constitution, of course, did make a definition of treason, but outside of that is not the Constitution silent on the power to act in that field, and yet will you say, as you have just indicated, that because that power was not expressly given to the Federal Government that the Congress does not have the right to act in the field of treason?

Mr. WYMAN. As far as that concept known as the United States of America is concerned, it does. Section 6 of article I says, in talking of our Congressmen and Senators, that they "shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same.'

Conceivably one can be an enemy to each of the separate sovereign States. I think it is very clear that no act of Congress can supersede, even expressly, the right of each sovereign State to pass its own treason law and subversive activities laws, even to the extent that the States want to fix tougher penalties, because the act of attempting to overthrow the Federal Government must occur in a State or Territory.

Mr. HYDE. You have stated that Congress has exclusive power to act in cases of treason where it is treason against the United States; have you not?

Mr. WYMAN. I do not think I said "exclusive." It has the power to legislate; yes.

Mr. HYDE. State statutes, such as the Pennsylvania statute and what is known as the Ober law in Maryland, set up criminal penalties for subversive activities against the United States.

Mr. WYMAN. Yes.

Mr. HYDE. Is that not what Nelson was prosecuted for in Pennsylvania?

Mr. WYMAN. In part. He was indicted on several counts in the indictment. Some were for attempting to overthrow the Commonwealth of Pennsylvania and some were for attempting to overthrow the United States, and the Supreme Court of the United States said it was only the charges of attempting to overthrow the United States with which they were concerned. I believe very strongly that the

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Federal Government cannot exclusively legislate to provide that no State shall make it treasonable to attempt to overthrow the United States within their jurisdiction.

Mr. HYDE. This bill would apply only where the place the treasonable act is committed is a gray area?

Mr. WYMAN. I do not believe there would be a gray area if this legislation as amended becomes law, and I do not think the objections of the Department of Justice can hold water against this legislation in its amended form. This says if you want to supersede a State law in the future you will have to say so, and when you say so you have to be pretty careful. You would want to be very careful before you put in such a provision in the future anyway. It provides further that no prior act of Congress shall be construed to supersede State laws by implication unless there is a direct and positive conflict between an express provision of such Federal act and such provision of the State law so that the two cannot be reconciled or consistently stand together.

Mr. HYDE. Well, then, you do concede, though, that there is an area here between the white of exclusive State jurisdiction and the black of exclusive Federal jurisdiction, where both can enter?

Mr. WYMAN. That is so, sir.

Mr. HYDE. That is what I meant by the gray area.

Mr. WYMAN. Not only is there that gray area in the powers which are not contained in the list which appears in the Constitution in section 8, where it says the Congress shall have power to lay and collect taxes, and so forth, but there are also other provisions concerned with the general welfare, and so forth, that you are familiar with. That means Congress can supersede the field if it wants to, but unless it says so it does not do so. That only is sensible. We have to advise our people in the States. We have to interpret the laws.

Ever since the earliest days of judicial interpretation in this country it has been the law that a person may commit a crime which is a crime against the Federal Government and a crime against the State government, in the same act. That has been true in counterfeiting. It has been true in the exercise of police powers of the States. There are lots of fields like that.

Mr. WALTER. Such as prohibition and kidnaping.

Mr. WYMAN. That is right. In that sense I believe that this bill as amended is a highly salutary, very advantageous and helpful thing to lawyers and to people and to future Congresses, when they start legislating in a field which obviously is going to touch upon State legislating. It will be very helpful.

So far as construction in the past is concerned, I agree with the chairman that the last sentence in substance merely is a caution-an expression-an indication of legislative intention to the judiciary that if you are going to go about and take a past act and interpret it as superseding State laws then you must find a direct and positive conflict between the two. That is nothing more than I believe should be found, in any event.

Mr. WALTER. Mr. Feighan?

Mr. FEIGHAN. No questions.

Mr. WALTER. Any questions, Mr. Chelf, Miss Thompson, or Mr. Hyde?

Mr. FEIGHAN. I have just been reading quickly this last sentence again. I wonder if we are not invading the jurisdiction of the courts by laying down for them a rule of interpretation.

Mr. WYMAN. I do not believe so, sir. I considered that at length in previous weeks. I have known about this bill for 2 years now.

This is a matter in which I believe it would be helpful to the court to have an indication from Congress that you do not want them to find this doctrine of supersession by implication unless there is a direct and positive conflict so that the two cannot stand together. That is only elemental States' rights, and I believe it is very important to the States that that should be the law. If Congress wants to supersede in the future it should say so expressly.

Mr. FEIGHAN. But are we making this the law? In other words, if, as we are doing here, we tell the courts what the sense of Congress is, if they choose to disregard it nothing could be done, because in their field of decisions they are supreme.

Mr. WYMAN. That is correct, if they choose to disregard it. But I do not think they would choose to disregard it. That is true if the courts wish to disregard it and the Supreme Court goes along with it; that is the law, until either a constitutional amendment or a change by Congress, which, under the Constitution, must be future-it cannot be ex post facto.

Mr. FEIGHAN. Thank you.

Mr. WALTER. General, on the last line of your proposed amendment you use the language "consistently stand together," and that is used in Mr. Smith's bill. Are those words of art that have been interpreted? I do not know what "consistently" means.

Mr. WYMAN. May I say this with all due respect, sir: I did not wish to usurp Congressman Smith's bill. I tried with other gentlemen to put together a bill which would obviate the objections of certain departments of the Federal Government and also accomplish the purposes which I know Congressman Smith feels so strongly about. The words "consistently stand together" were in H. R. 3.

Mr. WALTER. Yes.

Mr. WYMAN. They were left. So far as I know they are not any particular words of art, but Congressman Smith may have reasons, with which I am not familiar, for the use of the words "consistently stand together."

Mr. SMITH. May I interpolate there?

Mr. WALTER. Yes, sir.

Mr. SMITH. That was prepared by the drafting service. Whether they had any construction of those words I do not know. I can ascer

tain that.

Mr. WALTER. It looks like an open invitation to litigation, with that language.

Mr. SMITH. I do not know that the legal profession has ever objected too much to invitations of that kind.

Mr. WYMAN. I would think, Mr. Chairman, you could put a period after "reconciled".

Mr. WALTER. Yes, sir.

Mr. WYMAN. Without getting into that.

Mr. WALTER. You see, with "reconciled" and "consistently stand together" in the same sentence, the Court of course would find that

they mean two different things; otherwise, Congress would not have used them.

Mr. WYMAN. Used them twice; that is right.

Mr. WALTER. Yes. Thank you very much, General.

Mr. WYMAN. Yes, sir.

Mr. SMITH. Mr. Chairman, I should like to introduce Thomas B. Gay, of Richmond, of the firm of Hunton, Williams, Gay, Moore & Powell.

Mr. WALTER. I have had the pleasure of meeting Mr. Gay before. Mr. SMITH. I know you have.

Mr. WALTER. It seems to me we had some very interesting litigation at one time.

STATEMENT OF THOMAS B. GAY, OF THE LAW FIRM OF HUNTON, WILLIAMS, GAY, MOORE & POWELL, RICHMOND, VA.

Mr. GAY. Yes; we did, Mr. Chairman.

Being rather a garden variety of lawyer, I feel somewhat out of place appearing here in the presence of so many attorneys general. I will contribute what I can to this very important and it seems to meI am sorry to say-difficult problem.

My name is Thomas B. Gay. I am a member of the law firm of Hunton, Williams, Gay, Moore & Powell with offices in the Electric Building, Richmond, Va.

By way of qualifying myself to appear here, Mr. Chairman, if I may I should like to say I am a past president of the Bar Association of the City of Richmond and of the Virginia State Bar Association. I was State delegate from Virginia in the house of delegates of the American Bar Association for 12 years, and served as chairman of that body for 3 years. I also acted as chairman of the association's committee on jurisprudence and law reform and in that capacity have previously appeared before this committee. I am also a member of the Bar Association of the City of New York, of the American Law Institute, and the American Judicature Society.

Mr. WALTER. If I may be permitted, I will add: Recognized as the leading lawyer in Virginia.

Mr. GAY. Thank you, Mr. Chairman.

I appear before the committee for the purpose of advocating favorable action upon H. R. 3. Its purpose is to terminate the practice of excluding by judicial implication State action in the field of legislation where the States may act only so long as the Congress has seen fit not to legislate, by requiring that if the Congress desires to accomplish that result its purpose shall be expressly stated.

The need for this reform is found in the decisions of the Supreme Court holding invalid State laws which have been thought to offend constitutional concepts of Federal supremacy, solely because they regulate or deal with affairs affecting national interests in fields where the Congress has also asserted its authority by regulatory legislation. In a decision by Mr. Justice Swaine in 1872, in Ex Parte McNiel (80 U. S. 236), involving the constitutionality of a statute of the State of New York respecting pilotage regulations, the Supreme Court said, and I give this quotation-it is academic to all lawyers, but I think it might clarify the thinking of this committee as to the field with which we are really concerned in this matter

In the complex system of polity which prevails in this country the powers of government may be divided into four classes:

Those which belong exclusively to the States.

Those which belong exclusively to the National Government.

Those which may be exercised concurrently and independently by both. Those which may be exercised by the States, but only until Congress shall see fit to act upon the subject. * * *

Though roughly eroded by Federal encroachment, both legislative and judicial, the first category may still be identified with a few obvious examples. The States may still feel safely assured of their exclusive power to tax local activities, to police their citizens, and to define voting requirements for State elections. Where they do not violate other constitutional prohibitions, the States when acting in these fields are protected from Federal encroachment by constitutional barriers.

The States may not complain of Federal legislation in the second category for this involves areas of activity from which the States are constitutionally excluded by article I, sections 8 and 10, of the Constitution. Typical examples include the coinage of money, foreign affairs, and patent regulation.

It has been authoritatively stated that the third category should be more properly characterized as the "coordinate" powers. In this area each governmental system may act despite the activity of the other in the same field. Coordinate prohibitions of State and Federal criminal codes offer the best illustration of these powers. For example, a violation of the White Slave Act may also amount to a breach of State laws dealing with prostitution.

It is the fourth category to which H. R. 3 is directed. Here both governmental systems are found acting, but the extent to which the States may act depends upon the will of Congress. In this area lie matters which are ordinarily of both national and local concern. Included, for example, are all the activities which affect interstate commerce. National supremacy is recognized, but until Congress has acted in a particular field in a fashion which indicates a purpose to appropriate that field for exclusive Federal control the States may also act.

When the purpose of Congress to exclude all State control in a particular field is expressly announced, there is no problem and the course of the courts is clear-they should give no effect to State laws which seek to regulate in fields where Congress has asserted its exclusive right to control. But where Congress, when acting in some field of both national and local interest, does not indicate expressly whether the States may continue to regulate in that field and, if so, to what extent, this limitation must be implied.

In numerous decisions the courts have sought to determine this limitation. The nature of the Federal legislation, the extent to which Congress has sought to regulate, the compatibility of existing State laws, and numerous other factors have all furnished the sought-for implication of what Congress intended. Because these judicial pronouncements measure-and this is the real gravamen of this matterbecause these judicial pronouncements measure the extent of State sovereignty, it certainly seems desirable to do away with the doctrine of implied preemption and to provide that Congress state expressly its purpose and intent as to the effect of Federal legislation on State

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