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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to cast any reflection on you of any kind, because while I disagree fundamentally with some of your conclusions about these things, I do appreciate very much the very fairminded way in which you have presented them.

Mr. BROWNELL. Thank you very much, sir. I have the highest regard for your professional ability, and I hope that nothing I have said here would indicate anything other or that by any of my remarks I have intended to cast any reflections on you or your State. I have high respect for your legal ability.

Senator ERVIN. I presume we would recess at this point?

Senator HENNINGS. If nobody makes objection, Senator Ervin, no technical points will be raised unless the Sergeant at Arms comes over and forcibly removes us from this hearing room. I would like to accommodate the Attorney General and certainly the Senator from North Carolina and the Senator from Colorado.

Senator ERVIN. I am frank to state I have got a good many more questions I want to ask.

Senator HENNINGS. If there is no objection, I think we can proceed. Senator ERVIN. I would suggest that we come back, because I have got a considerable amount of other questions.

Senator HENNINGS. Knowing the Senator to be a great constitutionalist and also one who has great respect for the rules of the Senate, I raise that point only so the Senator may be advised, and I know that the Senator had nothing whatsoever to do with that.

Senator ERVIN. I did not, I am frank to say. I want these things presented so the folks will know what they are getting.

Senator HENNINGS. By that I don't mean to be critical of any Senator who objects to our sitting.

Senator ERVIN. I have other questions that will take me a good long time, a couple more hours, I imagine.

Senator HENNINGS. Can the Attorney General return tomorrow? Mr. BROWNELL. I have not checked my calendar, but I will certainly try to accommodate the committee in any way I can.

Senator HENNINGS. If not tomorrow, then at some other time.

Mr. BROWNELL. I am sure I can come tomorrow morning. I will rearrange my calendar.

Senator HENNINGS. There are other witnesses who are here now who had hoped to testify, too, so if the Attorney General's calendar does not permit him to be here tomorrow, there will be others who can testify.

Mr. BROWNELL. Shall we leave it, then, Mr. Chairman, that I will check immediately when I get back to the office, and unless you hear from me otherwise, I will be here at 10 o'clock tomorrow morning. Senator HENNINGS. Good enough.

Senator ERVIN. I might say that a lawyer's vacation is the time that elapses between the time he puts a question to the witness and the witness answers it.

Senator HENNINGS. The committee will rise and meet tomorrow morning at 10 o'clock.

(Whereupon, at 12:50 p. m., the committee was recessed, to reconvene at 10 a. m. Friday, February 15, 1957.)

CIVIL RIGHTS-1957

FRIDAY, FEBRUARY 15, 1957

UNITED STATES SENATE,

SUBCOMMITTEE ON CONSTITUTIONAL RIGHTS,

OF THE COMMITTEE ON THE JUDICIARY,

Washington, D. C.

The subcommittee met, pursuant to call, at 10:05 a. m., in room P-63, United States Capitol Building, Senator Thomas C. Hennings, Jr. (chairman of the subcommittee) presiding.

Present: Senators Hennings, Ervin, and Dirksen.

Also present: Charles H. Slayman, Jr., chief counsel, Constitutional Rights Subcommittee; and Robert Young, staff member, Committee on the Judiciary.

Senator HENNINGS. The subcommittee will please come to order. At the outset I would like to make this statement from Senator William Langer, of North Dakota, a member of the subcommittee and ranking minority member of the subcommittee.

He is unfortunately in the hospital recovering from an attack of pneumonia, and he sent word that he will not be able to be here but because of his constant interest in civil-rights legislation he will read all transcripts.

I also have the notation he hopes he will be allowed by the doctors to be with us soon.

This morning, Senator Ervin and I are the only ones present so far. At the conclusion of yesterday's proceedings we were in the midst of an inquiry, pursuing an inquiry

Senator ERVIN. At least the preamble to it.

Senator HENNINGS (continuing). Of the Attorney General by the Senator from North Carolina.

Have we a transcript of yesterday's proceedings?

We might read the last question and the last answer given and Senator Ervin can resume at that point, if he so desires.

The Attorney General has very generously made arrangements to be here again today and we appreciate that very much.

The last question, Senator Ervin, was-this is not a question, it is an observation.

Senator ERVIN. I want to return for a moment to one thing.
Senator HENNINGS. Have you your transcript here?

Senator ERVIN. I don't believe I need to refer to it for that.

Mr. Attorney General, I want to read an extract from the opinion of Mr. Justice Jackson in Collins v. Hardyman, reported in the 341st. United States Report at 651, the extract is on page 656, as a preliminary to certain questions about these bills.

Justice Jackson said, referring to certain statutes including the parts of subsection (3) of section 1985 of title 42 of the United States Code, which the third part of this bill

STATEMENT OF HON. HERBERT BROWNELL, JR., ATTORNEY GENERAL OF THE UNITED STATES, ACCOMPANIED BY WILLIAM P. ROGERS, DEPUTY ATTORNEY GENERAL; WARREN OLNEY III, ASSISTANT ATTORNEY GENERAL; AND EDWARD L. BARRETT, JR., SPECIAL ASSISTANT TO THE ATTORNEY GENERAL-Resumed Mr. BROWNELL. Is that the majority opinion?

Senator ERVIN. Yes. (Continuing :) Undertakes to amend. Justice Jackson said:

This statutory provision has long been dormant. It was introduced into the Federal Statutes by the act of April 20, 1817, entitled "An act to enforce the provisions of the 14th amendment to the Constitution of the United States and for other purposes."

The act was among the last of the reconstruction legislation to be based on the "conquered province" theory which prevailed in Congress for a period following the Civil War.

As I might digress at this point, I had a geology professor who said he thought the most appropriate thing to call that war was the “unCivil War."

I continue reading:

This statute, without separability provisions, established the civil liability with which we are here concerned as well as other civil liabilities, together with parallel criminal liabilities. It also provided that unlawful combinations and conspiracies named in the act that might be deemed rebellious, and authorized the President to employ the militia to suppress them.

The President was also authorized to suspend the privilege of the writ of habeas corpus. It prohibited any person from being a Federal grand or petit juror in any case arising under the act unless he took and subscribed to an oath in open court that "he has never, directly or indirectly, counseled, advised, or voluntarily aided any such combination or conspiracy."

Heavy penalties and liabilities were laid upon any person who, with knowledge of such conspiracies, aided them, or failed to do what he could to suppress them.

The act, popularly known as the Ku Klux Act, was passed by a partisan vote in a highly inflamed atmosphere. It was preceded by spirited debate which pointed out its grave character and susceptibility to abuse, and its defects were soon realized when its execution brought about a severe reaction.

Since the other things are not germane to the question I wish to ask, I won't read them.

Now a portion of this act that is referred to, the Ku Klux Act, is embodied in subsection (3) of section 1985 of title 42 of the United States Code, and you urge Congress to enact part 3 of S. 83 to give the Attorney General the power to enforce by injunctive process this portion of that act, and I quote:

If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another for the purpose of depriving either directly or indirectly any persons or class of persons of the equal protection of the laws or of equal privileges and immunities under the lawsthen there are other clauses which I will not read, but my question is directed to that clause.

What specific types of cases do you propose as Attorney General to bring under this portion of the act formerly known as the Ku Klux Act?

Mr. BROWNELL. You mean assuming that some factual situation arose that would appear to be a prima facie violation of that section? Senator ERVIN. You are urging Congress to amend the law so as to allow you as Attorney General of the United States to bring suits for injunctions under this provision of the law.

I want to find out from you first whether you think this provision of the law is constitutional, and second, what defendants you intend to proceed against under this provision of the law, and for what specific supposed wrongs.

That is a three-pronged question so you can take your time in answering.

Mr. BROWNELL. As to what specific defendants

Senator ERVIN. I will break it up. Do you think that portion of the act I read to you is constitutional?

Mr. BROWNELL. Yes; I believe I am correct, am I not, that there have been prosecutions, criminal prosecutions under that act where the constitutionality of that section has been upheld.

Senator HENNINGS. Mr. Olney may answer if he so desires.

Mr. OLNEY. If I understood the reading of that statute correctly, there was a good deal included in the reading that has since been stricken from the statute by action of the Congress.

There is a portion of the statute which still remains on the books unrepealed.

Senator ERVIN. Pardon the interruption.

What I read in the last portion, of course Justice Jackson referred to the original act which had a lot of other provisions in it. Mr. OLNEY. That is correct.

Senator ERVIN. But the last portion I read was a verbatim reading from such a recent publication as the 1956 pocket parts of the United States Code.

Mr. OLNEY. That is correct; but in giving the history of the legislation, what Mr. Jackson was describing was the history of the original act, with many provisions which are no longer in it. It is true that there is a portion of that statute which still remains in effect on the books, and there have been cases, both criminal and civil, I believe, in which the remaining portions of the statute have been held to be constitutional.

Mr. BROWNELL. That is what I thought.

Senator ERVIN. I want to read again the portion that is still the law, so that there will be no mistake about it.

The Attorney General is urging Congress to give whoever is occupying the Attorney General's office the power to bring suits in the name of the United States for private citizens to enforce the following provision of subsection (3) of section 1985 of title 42 of the United States Code:

If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another for the purpose of depriving either directly or indirectly any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws.