Attorney General KENNEDY. I think if you will look at what I said, these are what the facts are at the present time, and I think the people feel very strongly in the State of Alabama and Mississippi. I don't mean they are violating their oath. They just feel very strongly about this matter, they don't happen to agree with the Federal Government, the U.S. Government, me, or the President, or with those who bring these cases. Therefore, when they hear the evidence, they reach a decision which makes it very difficult to arrive at a prosecution. Now, that is the way they feel and I think that that feeling plays a very important role in helping you get any successful criminal prosecution. It was on that basis that the Civil Rights Act of 1957 and the Civil Rights Act of 1960 were requested. This does not originate with me as Attorney General, Senator.

Senator ERVIN. I would like to say that since I am responsible to some limited degree for the present administration being in power, I am not going to charge the Department of Justice as now constituted with any greater sin of omission in this field, that I can lay against the Department of Justice during the previous administration. I made inquiry as to this particular matter on occasions when previous Attorneys General were before committees, and found that their action in this field of criminal law was about on a par with the actions of this administration.

Attorney General KENNEDY. Could I suggest, Senator, that perhaps at your convenience, some time, you might talk to some of your colleagues from those States and find out whether they think that on these facts, you could have a successful prosecution?

I think they would bear me out.

Senator ERVIN. If they become witnesses, I may have an opportunity to interrogate them.

Attorney General KENNEDY. Just if you happen to see them later after the hearing.

Senator ERVIN. Let's see what laws are already on the statute books with reference to this.

Attorney General KENNEDY. I think you put them in the record. I have read your testimony.

Senator ERVIN. I would like to ask you about these laws and put them in again. I don't desire any publicity but I represent_a_viewpoint I would like the country to know something about and I have not found anything about the existing laws in the public press. It is not because I want any publicity, but I would like to get a little assistance from the free press of America in presenting to the American people the view that some of us honestly believe we are fighting for the preservation of constitutional government in opposing this bill. Attorney General KENNEDY. Fine, Senator.

Senator ERVIN. First, I want to call your attention to a statute which gives a private individual a right to a civil action for deprivation of rights. I refer to title 42, section 1983, of the United States Code, which reads as follows:

Every person who, under color of any statute, ordinance, regulation, custom or usage of any State or territory subjects or causes to be subjected any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and the laws shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress.

I will ask you if under that statute any American citizen of any race who is wrongfully denied the right to register to vote cannot sue the election officials committing the wrong for damages.

Attorney General KENNEDY. I would think he could.

Senator ERVIN. And, also, would he not have the right under that statute and have not the courts so held, to bring a civil proceeding in equity to prevent any election official from carrying into effect any threat or denial of his rights to register or vote?

Attorney General KENNEDY. I would think he could.

The CHAIRMAN. Senator Ervin, I understand there is an objection to our meeting, so we will have to recess.

Senator ERVIN. Before we adjourn, I would like to assure the Attorney General and the committee that I am not attempting to filibuster. I am trying to make a record which will show that this bill ought to be defeated.

Attorney General KENNEDY. I understand.

(Whereupon, at 12 noon, the committee adjourned, subject to the call of the Chair.)

CIVIL RIGHTS-THE PRESIDENT'S PROGRAM, 1963

WEDNESDAY, JULY 24, 1963

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The committee met, pursuant to recess, at 10:40 a.m., in room G-308, New Senate Office Building, Senator James O. Eastland (chairman) presiding.

Present: Senators Eastland, Kefauver, Johnston, McClellan, Ervin, Hart, Long of Missouri, Kennedy, Bayh, Dirksen, Hruska, Fong, and Scott.

Also present: Joseph A. Davis, chief clerk; L. P. B. Lipscomb and Robert Young, professional staff members.

The CHAIRMAN. The committee will come to order.
Mr. Ervin, you may proceed.

Senator ERVIN. Mr. Attorney General, as the committee adjourned at its last sitting, I was asking you about a statute embodied in section 1983 of title 42. It is entitled "Civil Action for Deprivation of Rights." - I would like to ask you if, under that statute, any person who is denied any right he has under the Constitution or laws of the United States cannot bring a civil action for damages against any public official for depriving him of that right?

STATEMENT OF HON. ROBERT F. KENNEDY, ATTORNEY GENERAL OF THE UNITED STATES, ACCOMPANIED BY BURKE MARSHALL, ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISIONResumed

Attorney General KENNEDY. He can, Senator.

Senator ERVIN. I will ask you, furthermore, if, under that statute, any person who is threatened with the deprivation of any right he has under the Constitution or laws of the United States, by any State or local official, cannot bring an action in equity and obtain preventive relief against being deprived of that right.

Attorney General KENNEDY. I believe he can, Senator.

Senator ERVIN. I ask you if, under the rules which govern the Federal courts, suits in equity are not tried by a judge without a jury? Attorney General KENNEDY. That is correct, Senator.

Senator ERVIN. Now I call your attention to another section, which is subsection 3 of section 1985, title 42, which is a provision of that statute dealing with a conspiracy to deprive a person of rights and privileges.

I will ask you if, under that statute, any American of any race who is denied any right which he has under the Constitution or laws of the United States cannot recover damages in Federal district_courts of all public officials and private individuals who conspire to deprive him of such right.

Attorney General KENNEDY. I believe that is correct, Senator.

Senator ERVIN. So, under those two statutes, any American of any race who is deprived by any State or local official of any rights, under the Constitution or laws of the United States, has ample remedies to vindicate his rights if he is willing to have his rights adjudicated by the same laws which apply to all other men.

Attorney General KENNEDY. He has the remedies that you describe, Senator.

Senator ERVIN. I will call attention to certain statutes which are available to the Department of Justice in this connection. The first to which I will call your attention is section 242 of title 18 of the United States Code, which reads as follows:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, territory, or district to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties on account of such inhabitant being an alien, or by reason of his color or race than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than 1 year, or both.

I will ask you if the power to invoke that law does not rest in the Attorney General of the United States and the Department of Justice. Attorney General KENNEDY. That is correct, sir.

Senator ERVIN. I will ask you, under that law, if that law does not provide punishment by imprisonment for as much as 1 year, and a fine of as much as $1,000, or both, for any State or local official who denies any qualified citizen of any race of his right to register to vote? Attorney General KENNEDY. That is correct, sir.

Senator ERVIN. Furthermore, I will ask you if that statute is not even broader than that, and if it does not subject any State or local official to the punishment it prescribes, if he willfully denies any person within the borders of the United States of any right or privilege which he is entitled to under the Constitution and laws of the United States? Attorney General KENNEDY. I believe that is correct, Senator. Senator ERVIN. I call your attention to section 241 of title 18 of the United States Code, which bears the heading "Conspiracy Against Rights of Citizens," and which reads as follows:

If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or if two or more persons go in disguise on the highways, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured, they shall be fined not more than $5,000 or imprisoned not more than 10 years, or both.

I ask you if the courts haven't held, under this statute, that any State or local official who conspires with any other person to deprive any qualified American of any race of his right to vote or of any other right or privilege secured to him by the Constitution or laws of the United States is subject to that punishment?

Attorney General KENNEDY. I believe that is correct, Senator.