At this point, Mr. Chairman, I would like to have the privilege of inserting in the record in relation to this injunction power this extract from an article by Henry Clay Caldwell in the American Federationist, volume 17, page 385 and following.

Senator HENNINGS. Without objection, Senator Ervin, an article by Mr. Henry Clay Caldwell will be made a part of the record in these proceedings.

(The article is as follows:)

ON THE INJUNCTION POWER

The modern writ of injunction is used for purposes which bear no more resemblance to the uses of the ancient writ of that name than the milky way bears to the sun. Formerly it was used to conserve the property in dispute between private litigants, but in modern times it has taken the place of the police powers of the State and Nation. It enforces and restrains with equal facility the criminal laws of the State and Nation. With it the judge not only restrains and punishes the commission of crimes defined by statute, but he proceeds to frame a criminal code of his own, as extended as he sees proper, by which various acts, innocent in law and morals, are made criminal, such as standing, walking, or marching on the public highway, or talking, speaking, or preaching, and other like acts. In proceedings for contempt for an alleged violation of the injunction the judge is the lawmaker, the injured party, the prosecutor, the judge, and the jury. It is not surprising that uniting in himself all these characters he is commonly able to obtain a conviction. While the penalty which the judge can inflict by direct sentence for a violation of his code is fine or imprisonment limited only by his discretion, capital punishment may be inflicted by indirection. All that seems to be necessary to this end is to issue a writ to the marshal or sheriff commanding him to prevent a violation of the judge's code, and then the men with injunction nooses around their necks may be quickly dispatched if they attempt to march across this injunction deadline. It is said that the judge does not punish for a violation of the statutory offense but only for a violation of his order prohibiting the commission of the statutory offense. Such reasoning as this is what Carlyle calls logical cobwebbery. The web is not strong enough to deprive the smallest insect of its liberty, much less an American citizen.

The extent and use of this powerful writ finds its only limitation in that unknown quantity called judicial discretion touching which Lord Camden, one of England's greatest constitutional lawyers, said: "The discretion of a judge is the law of tyrants; it is always unknown; it is different in different men; it is casual and depends upon constitution, temper, and passion. In the best it is ofttimes caprice; in the worst it is every crime, folly, and passion to which human nature is liable." Mr. Burke pointed out the danger of investing “any sort of men" with jurisdiction limited only by their discretion. He said: "The spirit of any sort of men is not a fit rule for deciding on the bounds of their jurisdiction; first, because it is different in different men and even different in the same at different times, and can never become the proper directing line of law; and next because it is not reason but feeling, and when once it is irritated it is not apt to confine itself within its proper limits.

It is a curious and significant fact that the reasons given for conferring on Federal judges the police powers of the State and denying to accused persons the right of trial by jury are precisely those given for the establishment of the court of star chamber. Summed up in a few words, the reason for its creation as expressed in the preamble of the act of Parliament was to secure the certain and speedy punishment of all persons who in the opinion of the court deserved punishment, and to this end the court was invested with a large measure of the jurisdiction and discretion exercised by Federal chancellors in our day, and a trial by jury denied. Learned, able, and honest judges sat in that court, but never a jury. History records the result. Its methods grew to be as cruel and pitiless as those of the Inquisition itself; it would have put an end to the liberties of the English people if it had not been abolished. "Had there been no star chamber," says a distinguished English writer, "there would have been no rebellion against Charles I." The lesson taught by the history of the star chamber is that the rights and liberties of the people will not long survive in any country

where the administration of the law is committed exclusively to a caste endowed with boundless discretion and a long term of office, no matter how learned, able, and honest its members may be.

Every student of history knows that most of the sufferings and oppressions which mankind has had to endure were the work of honest and able, but misguided or ambitious men. Honesty and ability do not exempt from error, and when coupled with error they become dangerous gifts. After all, the human skull is but the temple of human errors, and judicial clay, if you analyze it well, will be found to be like all other human clay. The rule is without exception that whenever the excusive power of making or administrating the law is committed for any extended period to a single man or a few men-to a castethe progressive restriction of the liberty of the people follows. The bond of sympathy between them and the people grows steadily weaker until the rights of the people are forgotten and the protection and interest of caste and classes become their chief concern. (From article by Henry Clay Caldwell in American Federationist, 17: 385-399, May 1910. Portion reprinted in The Reference Shelf. vol. V, Jury System, 89–92.)

Senator ERVIN. I also ask to have inserted in the record at this point an editorial entitled "Judge-Made Chaos," by David Lawrence, which appeared in the issue of U. S. News & World Report for December 28, 1956.

Senator HENNINGS. Without objection, this other exhibit from the U. S. News & World Report will be made a part of the record of these proceedings.

(The article is as follows:)

[U. S. News & World Report, December 21, 1956]

JUDGE-MADE CHAOS

By David Lawrence

The American people must stand aghast at the edict by a Federal judge that anyone who speaks his mind in urging nonattendance at a mixed school in Clinton, Tenn., may be guilty of contempt of court.

This means that, without a trial by jury, citizens in supposedly free American can be put in jail for their utterances. Free speech is thereby squelched and thought control imposed.

This is a sweeping and arbitrary extension of judicial power.

It is not sanctioned by any act of Congress.

It is not authorized anywhere in the Constitution.

The "supreme law of the land" today-and it has not been reversed by the Supreme Court of the United States-was laid down by two judges of the United States Circuit Court of Appeals and a district court judge in July 1955. The three-judge opinion of the court said, in part:

"The Constitution does not require integration. It merely forbids discrimination."

The school board in Clinton, Tenn., complied fully with the Supreme Court's order-it opened its doors to everyone, irrespective of race. Beyond that it did not need to go. A Federal judge there, however, evidently feels that his injunction, ordering nobody to "interfere" with "integration," covers also the acts and speeches of citizens and the distribution of printed matter anywhere in the community outside the school.

On Monday of last week an extraordinary thing happened in Clinton. Eugene Joyce, the county attorney of Anderson County, at the request of the school board, made a speech in which he read this Federal injunction to the assembled highschool students. The full text of his remarks, as stenographically recorded, appear on pages 59-61 of this issue. Certain passages are startling. The county attorney, for example, said:

"To my knowledge in all of American history it has never been necessary to read an instrument such as this, a Federal injunction, before an especially called assembly of a student body."

Mr. Joyce went on to say:

"Questions have been asked of me and other law-enforcement officials as to the enforcibility of this injunction. I think the actions of the past few weeks

or the past few days, particularly, speak in unmistakable language that this injunction is enforcible.

"The other question so frequently asked is: Will this injunction apply to students under 21 or to acts inside the high-school building? The answer is that this injunction has no limits; it applies to everyone, everywhere, be they minors, adults, inside or outside any building in this county.'

Any reading of the text of the injunction confirms Mr. Joyce's view. It is in truth an injunction without limits. It covers every act and every speech or writing and every meeting of citizens in the community and county which a Federal judge-without jury trial-may decide to punish as violative of the spirit or purpose of the injunction itself.

It is important to note, moreover, that the county attorney told the students that, while the school principal would hereafter expel "any student that is guilty of misconduct," their troubles might not end there. He added:

"They (the members of the board of education) have also instructed the faculty to pass on to the Federal Bureau of Investigation any actions on behalf of the students that might be construed as violative of the injunction."

What a means of intimidation this Federal injunction turns out to be. In free America the boys and girls in a public high school are being taught, in effect, that State government has been abolished, county government has been abolished, and that an all-powerful dictatorship by the judiciary, acting upon "evidence" obtained through investigations made by the Federal secret police, will now suppress the right of any citizen even to talk about segregation or integration.

The students in Clinton thus are given a false picture of their own system of government. They are not taught that they have a right to express themselves for or against segregation or integration. They are not taught, moreover, that under the Federal Constitution any assault or misdemeanor or any form of intimidation or threat is a case for State and county prosecution unless the State of Tennessee intends to abdicate all responsibility for maintenance of law and order.

Nobody, of course, should condone violence. But under the Constitution it is the exclusive duty of the State to prosecute any criminal offenses committed within the State. This is the "supreme law of the land" as laid down again and again by the Supreme Court of the United States.

This whole chain of events, which has comes to a head in Clinton, Tenn., was forecast by James F. Byrnes, formerly an Associate Justice of the Supreme Court of the United States. In a speech on September 22 last, before the Vermont Bar Association, he declared that only Congress, by appropriate legislation, can enforce the 14th amendment. Mr. Byrnes added:

"But the Supreme Court that was unwilling (in 1954) to leave the amendment of the Constitution to the Congress and the States, as provided in that instrument, likewise was unwilling to leave to the Congress the enforcement of the 14th amendment. It has substituted for congressional legislation the power of the courts. That means the power of injunction. It is a dangerous power, often abused.

"Already the press reports a blanket injunction by a United States judge against the people of a community, prohibiting interference with the integration of a school.

"Assuming the report to be correct, it suggests many problems. What constitutes 'interference' may not be set forth in a court order in the precise language of a criminal statute. If left to the discretion of a judge, it will differ in various jurisdictions.

"Heretofore, a judge could imprison a citizen for contempt committed in his presence. For refusal to comply with an order directing an affirmative act, like turning over assets, a citizen could be imprisoned by a judge solely to coerce him into complying.

"But in cases of criminal contempt, or proposals to imprison as punishment for some act already done-not in the presence of the court-the citizen was entitled to a jury trial.

"Now it is evident efforts will be made to deny the citizen a jury trial. The precedents about to be established by the expansion of the injunctive power will have far-reaching effects. They may place new restrictions upon the right of free speech. Certainly they will raise serious questions for the leaders of organized labor.

"If the speech of a citizen urging students not to attend an integrated school is held violative of a court order enjoining interference and is punished by imprisonment without a jury trial, then what about a speech by a labor leader urging employees not to work when interference is similarly enjoined?

"As a result of the Supreme Court's decision, a district judge has the authority to enjoin school officials from refusing to admit a student solely because of his race or color. More than that he should not do. He should not set himself up as a glorified school administrator."

It is clear, moreover, from a reading of many decisions of the Supreme Court,, that the 14th amendment can be enforced only by legislation passed by Congress. Justice Jackson, speaking for the Court in a decision 10 years ago, emphasized that the fifth section of the 14th amendment specifically vests in Congress the authority to enforce it by statute. Citing an enforcement statute on certain phases of civil rights enacted by Congress on March 1, 1875, he wrote:

"This statute was a factor so decisive in establishing the Negro-case precedents that the Court even hinted that there might be no judicial power to intervene except in matters authorized by acts of Congress. Referring to the provision empowering Congress to enforce the 14th amendment, it said that 'all of the amendments derive much of their force from this latter provision. It is not said the udicial power of the general Government shall extend to enforcing the prohibitions and to protecting the rights and immunities guaranteed. It is not said that branch of the Government shall be authorized to declare void any action of a State in violation of the prohibitions. It is the power of Congress which has been enlarged. Congress is authorized to enforce the prohibitions by appropriate legislation." "

Where are the so-called liberals of today in this controversy? They always are alert enough to raise their voices when a Communist sympathizer is dismissed from a Government post because he allegedly holds different "opinions" than his superiors. It usually is protested that the Federal Government is seeking to impose "thought control."

But not one of the civil-liberties organizations has cried out in protest against the patently outrageous extension of Federal authority in the Clinton injunction. The Bill of Rights of the Constitution guarantees free speech, free assembly, and the right to a jury trial.

Do not the liberals believe in giving the boys and girls and their parents in Tennessee these rights?

Or do we have one standard for Communist sympathizers and another standard for loyal Americans who hitherto have been taught to believe that the States are responsible for the exercise of the police power in maintaining law and order within the States?

The Constitution plainly vests authority to enforce the 14th amendment only in Congress. This is the supreme law of the land today.

Is the legislative power of Congress to be circumvented by the subterfuge of a Federal injunction issued in an unprecedented era of judicial tyranny? Extreme measures usually beget other extreme measures. Will the southern Members of Congress now try to amend the Department of Justice's appropriation bills at the next session and filibuster against their passage unless riders are adopted defining the limits of Federal and State authority?

Integration will never be accomplished at the point of a bayonet or by giving to the judiciary an enforcement power it has never possessed. Judge-made law can only result in judge-made chaos.

A LAWYER ASKS: "IS A TENNESSEE JUDGE A ONE-MAN GOVERNMENT?"

How far can Federal judges go to force mixed schools in areas where public opinion is opposed?

Does the Constitution impose limits upon the power of judges

to put citizens in jail without a trial by jury?

The extent of judicial power is being brought into question by action of the Federal Government to punish citizens of Clinton, Tenn., who oppose the mixing of races in the schools.

Issues involved are described by a prominent attorney in a communication to the Washington, D. C. Evening Star. The attorney preferred that his name not be used.

This communication, bearing on a subject of growing importance, is reprinted with permission of the Washington Evening Star. Following is full text of a letter from a Washington, D. C. lawyer who signs himself "Publius," reprinted by permission from the Washington Evening Star of December 18, 1956:

The recent occurrences in Clinton, Tenn., raise some questions that go far beyond the problem of segregation in the schools-questions which should give any student of history and law pause to consider what results may well flow therefrom.

Of course, Prince John of England started out with some very worthy purposes. His brother, Richard the Lionhearted, had gone on the Third Crusade to preserve Christianity itself. This and other wars cost considerable money-more than England could afford.

John began to make levies for national defense and appointed judges who set aside all custom to get the money. Soon people were being grabbed on the streets, upon writs issued by the King's judges, and thrown into jail irrespective of the customs or laws of the land and without indictment, jury trial or even defense. This was one of the conditions that resulted in the Magna Carta.

Four centuries later, James II was faced with actual rebellion on the battlefield. Now, of course, treason is a very odius offense. In that case the treason had actually reached the stage of open war.

James then proceeded to punish such treason. His tool was an ambitious young lawyer named Jeffreys, who was ordered to hold assizes [court sessions] and to punish the traitors. His term of court became known as the notorious Bloody Assizes, and no one even knows how many people were seized in the night, tried, drawn, and quartered or otherwise tortured to death.

The English people decided that judicial tyranny was as bad as monarchial tyranny and threw Jeffreys into the Tower [of London] and James off his throne. The requirement that one be punished only by law and convicted of serious crime only by jury was again emphatically restated in the English Bill of Rights and, until recently, has not been doubted in any English or American court.

Fundamentally, due process of law in criminal actions has always meant at least two basic things: (1) There must be a law enacted by the proper legislature defining the crime, and (2) the right of trial by jury has always meant that no judge had control over the facts of the case, which were the sole province of the jury.

The recent segregation cases have been civil suits. As such, they were brought against various public-school authorities to prohibit them from denying certain plaintiffs the right to enter schools, on the ground that statutes which discriminated on the basis of race were contrary to the 14th amendment.

The Supreme Court has held that such statutes do contravene the 14th amendment, and the defendants in the cases, the public officials in question, have been ordered to cease enforcing the State laws held to be invalid. So far, one might find some argument of historical and constitutional basis for the action. A school board, ordered not to take any action contrary to the judgment of the Court, would be in contempt of court if it disobeyed. This would, perhaps, be merely the carrying out of the decree of the Court against the parties over whom it has jurisdiction in the suit before it.

But now something new has been added which opens wide the doors for any action that any particular judge may wish to take and without regard to any law. In Tennessee, it seems, a single judge has issued a general injunction addressed to anyone in the whole world, telling all and sundry that they cannot do anything contrary to his decree against the school board.

Where does this ultimately lead us? By what right under law can one man, sitting on a Federal bench, extend the parties to a lawsuit to include the entire populace, and then single out anyone for arrest and conviction? If a person criticizes any judgment of a court and advocates its reversal or repeal, is the judge a one-man government who can do what he pleases with the rights of such a citizen?

If a single judge has this power, do we have a government of laws or merely a government of men, with each man sitting on any bench making up crimes as he pleases or meting out such punishment as his whim dictates? Finally, if a judge can, without benefit of statute, impose jail sentence, can he also sentence a citizen to be hanged?

When one looks at the whole Constitution, based upon all the centuries of human experience, one is startled to find how many provisions of that Constitution are being ignored and torn to shreds by judges who have apparently confused themselves with the gods. Let us consider a few:

"MANY PROVISIONS OF CONSTITUTION ARE BEING IGNORED"

The 14th amendment contains some clear and plain words which have not been mentioned by any court or newspaper in the recent segregation cases. In