Mr. BROWNELL. Has that been your feeling about this practice you say you have in North Carolina, that injustices have been done because you have this practice there?

Senator ERVIN. No, I do not say injustices have been done.

Mr. BROWNELL. In North Carolina it has worked all right?
Senator ERVIN. It has worked all right for this reason-

Senator HENNINGS. I believe it would in the other 47 States, too. Senator ERVIN. In North Carolina we have kept injunctive relief in its proper field, and a temporary restraining order and a temporary injunction issue in North Carolina only to preserve the status quo, pending a hearing on the merits, and a man always gets a hearing on the merits.

We have not attempted to substitute an injunction for a criminal indictment, so it works very well.

Mr. BROWNELL. You do not have an injunction-
Senator ERVIN. No great harm has been done.

Mr. BROWNELL. You don't have any injunction in election cases in order to preserve the right to vote?

Senator ERVIN. Not of this type.

Mr. BROWNELL. It would be a good thing to add, then.

Senator ERVIN. I do not know of any, and to tell you the truth with the exceptions of the ones you have mentioned here, I never heard of any controversies about elections down there.

Mr. BROWNELL. In my home State we have special sessions of our highest court and our intermediate courts called to give injunctive relief in these election cases, where the rights of citizens would otherwise be lost.

Senator ERVIN. Frankly, until I came here this morning, as I said before, I never heard of anybody in North Carolina being denied the right to vote on account of race or color.

Mr. BROWNELL. Well, we consider that one of our functions, whenever we get verified information of this sort, to make it public.

Senator ERVIN. Anyway, don't you agree with me that when you reduce the testimony of George Wasthington and that of Ananias to cold paper with no opportunity to see their demeanor or conduct, that it is practically impossible to distinguish between them?

Mr. BROWNELL. If we have the choice, we will take George Washington and leave Ananias outside the courtroom.

Senator ERVIN. But you cannot tell which is which?

Mr. BROWNELL. I think I can distinguish.

Senator ERVIN. You could not tell whether John Doe or Richard Roe in an affidavit case was George Washington or Ananias?

Mr. BROWNELL. I really find it hard to understand, Senator, how you can make that statement when for 165 years the courts of this country have functioned in many very delicate areas in these injunction cases on the basis of affidavits, and it has been a very satisfactory method of acting.

It goes back to the early days of equity procedure in England, and to say that you cannot do justice by using that well-tested form of legal procedure really is quite a novel argument.

Senator ERVIN. Mr. Attorney General, I will ask you this: Don't we have a rule of practice which prevails almost universally in the United States? One is that an appellate court can retry the facts in an equitable proceeding which was heard upon affidavits, whereas

where findings of facts are made by a trial court on the basis of witnesses who have appeared in person before the trial court, the appellate court cannot change the findings?

Mr. BROWNELL. And the same thing would be true if this legislation were passed and those same rules would govern.

Senator ERVIN. But the man would be registered and would vote if he got an affirmative ruling, and the case would never be tried on the merits, because the court would say, "Well, the event is already past, and this is a moot question."

Mr. BROWNELL. That is one extremity. We are, however, on the other hand faced with the fact that without this authority in the Federal Government people are disenfranchised en masse by reason of their color.

Perhaps to take a well-tested type of procedure such as we are proposing and apply it in this area is certainly a very conservative approach to the problem.

Senator ERVIN. You do not need this law for most of the States; do you?

Mr. BROWNELL. I would say that the problem is widespread enough to urgently call for action by the Congress at this session.

Senator ERVIN. How widespread is it, so Congress could have some evidence to base it on?

Mr. BROWNELL. The examples we have given you in themselves are, I think, rather indicative of the fact that the problem is a major problem which deserves quick action.

Of course, one purpose that we have in asking you for the establishment of the bipartisan commission is to settle any doubts in anyone's mind as to the extent and scope of the problem.

Senator ERVIN. You have cited 1 parish in Louisiana and 3 precincts in North Carolina, and you think that indicates that the problem is so widespread that we ought to make a drastic change in the laws in this field?

Mr. BROWNELL. Let me put it this way. Of course, this is not based on just a few examples that I have in my prepared statement. There are others which, of course, received a great deal of newspaper publicity during the past few months, so that I would say it was a matter of common knowledge that this is a widespread problem, and I also would not want to leave unchallenged in the record your characterization of the proposed legislation as "drastic" or "new" or "untried," because I think this discussion that we have had this morning indicates that it is a moderate approach, that it only applies in this one area, a well-tested and fair legal procedure for the purpose of insuring the voting rights of the citizens.

My own approach to it is that this being really the basis of our whole system of government, without which we cannot have confidence in organized government, this right to vote, that it should receive the enthusiastic support of everybody to have both the Federal and State governments have complete authority to protect this, you might say our most important and precious of civil rights.

Senator ERVIN. You do not concede that these amendments are based on the thesis that the States are either unable or unwilling to perform their obligations in these connections?

Mr. BROWNELL. Well, evidently they have been unable to in some cases; for example, the examples we have used this morning would

indicate to me that somewhere along the line down there in Louisiana the authorities have been unable to protect the right to vote of the citizen; yes.

Senator ERVIN. And so you abolish any necessity for exhausting any administrative remedy whatever under State law?

Mr. BROWNELL. As I said over in the House when we were discussing this same problem, in the first place, we do not take any authority away from the States, and we would hope that perhaps by calling attention and passing this legislation that there would be renewed and more vigorous efforts on the part of the States and localities to see to it that the civil right is protected.

But if they do not, then I think if we are going to keep our Federal Government functioning we must have adequate authority in the Federal Government to protect this right.

Senator ERVIN. I believe you concede that unless this thing gets down to trial on the merits, as far as the temporary injunction and restraining order is concerned, that the judge could try the case on affidavits, without affording the defendant any opportunity to crossexamine the persons making the charges prior to issuing the restraining order or the temporary injunction?

Mr. BROWNELL. Oh, no, that is not my position at all, Senator. Evidently I have not made myself clear. That is not my position at all. Senator ERVIN. Let's see if we understand this in the same sense. A restraining order is an order in the nature of an injunction which is ordinarily issued by a court to be in force until they can pass on the question whether there should be a temporary restraining order.

Mr. BROWNELL. Yes, but it cannot be issued arbitrarily. It must be issued only after the judge has satisfied himself that he has got the facts on which to base his actions.

Senator ERVIN. But what I am getting at, Mr. Attorney General, he can satisfy himself of that fact on affidavits?

Mr. BROWNELL. In some cases.
Senator ERVIN. Without any witnesses?
Mr. BROWNELL. In some cases.

Senator ERVIN. He has that power?

Mr. BROWNELL. And he has that power.

Senator ERVIN. And it is well to stop and ponder the question that the law has to be administered by some judges who are wise and some who are unwise, and also to see what abuse can be made of it, isn't that so?

Mr. BROWNELL. We have had 165 years of practice both in the Federal and State courts of giving that authority to judges.

I personally have had many cases. I have lost some of them, I have won others, but I think on the whole justice has been done, and I do not see any reason why it cannot be done here.

Senator ERVIN. Let's go back to this. Under the authority of these amendments, the judge could issue a restraining order or a temporary injunction on the basis of affidavits, without giving the defendant an opportunity to cross-examine the people making those affidavits, couldn't he?

He would be empowered to do that?

Mr. BROWNELL. You are assuming that he would act arbitrarily, Senator?

Senator ERVIN. No, sir; I am not doing that.

Mr. BROWNELL. I do not believe that has been our experience, and I think when you come down to the review powers that are given to our appellate courts to protect against any arbitrary action of that kind, assuming we had such a situation, that it is not a realistic approach to think that that would happen.

Senator ERVIN. I am not asking it on the basis of arbitrariness. My question is this; and it is very simple. That under these amendments, a judge could issue a restrainnig order and a temporary injunction without giving the defendant an opportunity to cross-examine the people making the complaint against him.

Mr. BROWNELL. In the first place, it has never happened, and it could only happen in the case the judge is satisfied that on the basis of the record before him he has the pertinent facts on which to do justice.

Senator ERVIN. Mr. Attorney General, do you tell me that judges never issue a restraining order or a temporary injunction on affidavits without giving the party against whom the restraining order is issued an opportunity to cross-examine those witnesses in court?

Mr. BROWNELL. That is a very different question.
Senator ERVIN. No; that is the identical question.

Mr. BROWNELL. You are asking me if in all the history of the courts of this country there has never been a temporary restraining order issued on affidavits.

The answer of course is yes, as we have said several times this morning, that that is done sometimes, but it is not done unless the judge is satisfied that that method of procedure, which is discretionary on his part, will bring about a just result in the case before him.

Senator ERVIN. If the judge is so satisfied, he certainly has the power under this to take that course, hasn't he?'

Mr. BROWNELL. He has the power. He has the power subject to the restraints of the appellate courts.

Senator ERVIN. The case could not be heard by the Federal court in time to do any good?

Mr. BROWNELL. As I say under our State practice we call sessions of the highest court to be sure election cases are promptly taken care of. Senator ERVIN. You referred to Clinton, Tenn.

I will ask you in Clinton, Tenn., didn't the Federal judge issue an injunction and send a man to jail for 1 year for contempt of court, without a jury trial, and if that same man was not tried on substantially the same charge in the State court and acquitted by a jury? Mr. BROWNELL. The John Casper case?

Senator ERVIN. Yes.

Mr. BROWNELL. I think that case is in court now and I would prefer not to discuss it.

Senator ERVIN. Was he not tried by the State court under State law for the facts out of which the alleged contempt arose and acquitted by the jury?

Mr. BROWNELL. The case is on appeal now in the Federal courts and under the rules I think I am prohibited from commenting on any aspect of that case.

Senator ERVIN. Don't you know that there was a verdict of "not guilty" returned by a jury when he was tried in the State court upon charges growing out of the same facts out of which the alleged contempt arose?

Mr. BROWNELL. If you make it as a statement, I am sure you would not make it unless you had the facts.

Senator ERVIN. Now if the judge issues a temporary injunction or restraining order and the party is alleged to disobey it, under this procedure the judge can punish that man for contempt without giving him a jury trial, can't he?

Mr. BROWNELL. Only insofar as the common law and the laws of the United States have recognized it over the years.

There would be no change whatsoever in the authority of the courts involved in this legislation.

Senator ERVIN. I will ask you if that is not one of the purposes of this law.

Mr. BROWNELL. No, sir. This law does not change the contempt powers of the Federal courts in one iota.

Senator ERVIN. It brings it under the existing laws of the United States so that the man could be punished for contempt without ever having a right to have the question of his guilt or the facts out of which the alleged contempt arose being heard by a jury, couldn't he? Mr. BROWNELL. Only to the extent that the equity proceedings of the Federal courts allow that, and have allowed it over the years.

Senator ERVIN. I am asking if they don't allow it, if that is not what they allow?

Mr. BROWNELL. I think that you are attempting to get from me, Senator, unsuccessfully so far and it will be in the future, a statement which tries to put a misleading conclusion on the statement of facts that is before us.

Senator ERVIN. Mr. Attorney General, I frankly do not attempt to mislead anybody.

Mr. BROWNELL. I know you are not, but I think that is the inherent result of this discussion.

Senator HENNINGS. At this point may the Chair make just a brief statement, and I certainly do not want in any way to inhibit the Senator's discussion with the Attorney General in his interrogation. In keeping with custom when the Senate is in session, Senator Mansfield asked for permission for the committee to sit during the session of the Senate today. There was objection made by the distinguished junior Senator from Louisiana, so we are now sitting without permission-I do not want to be too legalistic or technical.

Mr. BROWNELL. You mean this discussion has been unconstitutional? Senator HENNINGS. I would like to accommodate the Attorney General. He is a very busy man, as you know, and he has come here, and I just wanted to make that observation that we were not given permission, as requested, to sit this afternoon.

However, the committee, at the conclusion of the colloquy and discussion and interrogation, will then proceed again tomorrow morning at 10 o'clock. The Senate will not be in session tomorrow and we will hold hearings again on Saturday all day, so I am just indicating that we are not authorized to sit.

Senator ERVIN. I am sorry there was any objection. I would like to make a statement.

Senator HENNINGS. I did not mean to cut you off.

Senator ERVIN. Mr. Attorney General, I do not want to close on this, but apparently we have to close at this point. I am an advocate, in a sense, and if I seem to be a little enthusiastic, I do not mean

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