Attorney General to enforce this particular portion of this third subdivision of this statute.

Mr. BROWNELL. You have to refer to a court decision, it seems to me, to get the full picture, Senator, because those court decisions are the ones which define the particular civil rights that have been adjudged to be enforcible civil rights of our citizens.

Those court decisions will give you a list of the civil rights to be protected. All that our legislation does is to authorize us to use civil remedies to enforce those rights.

There are a long list of them you can find in the annotated statutes by quickly looking through them, but we will file a list of them so it will be in the records of the hearing.

Senator ERVIN. You still have not told me any specific conditions that exist in New York, California, or any of the other 48 States of the Nation which demand such a drastic change in our procedure as this. That is a question of fact, of existing conditions, and I respectfully submit, while you have given answers to my questions, that none of them have been in a legal sense responsive, because I am not asking for law; I am asking for facts.

Now I will proceed. Unless you can enumerate the facts, I will proceed to another point.

Mr. BROWNELL. You have given me an impossible task there to give you all the factual situations that might be involved in the enforcement of these civil rights.

Senator ERVIN. Mr. Attorney General, in my view as a legislator, unless there are some existing conditions which demand a remedy of a drastic nature or any kind of remedy, there is no use in passing a law, to cover something for which there is no need of correction.

Mr. BROWNELL. Senator, this list of cases which we will file with you will show that over the years, and in recent years, also, there have been a great many violations of the civil rights of our citizens, and that they have been so serious and so widespread that, as I say, you will find many cases which not only define them, but as nearly as the courts can, using the criminal powers, they protect.

In practically every one of those cases it will occur to you, I am sure, after you have read them, that it would have been much more sensible, and justice would have been more fairly administered, if the Government had been able to move in the civil courts to protect those same rights.

Very often the criminal remedy is a harsh one. You would be surprised, perhaps, if you have not had an opportunity to look at them, at the long list of violations that have had to be brought into the Federal courts, and, as I say, I am sure you will feel that many of them would have been better handled not only for the individuals but for the protection of proper Federal-State relationships if the civil courts rather than the criminal courts had been called upon to try and protect against those same violations.

Senator ERVIN. That is the trouble, Mr. Attorney General. I want to know some specific examples which give any group of citizens in the United States a civil right to demand that the fundamental law, which has operated well in America since this country was created, should be altered for their special benefit by depriving all of the American citizens, including themselves, of other basic constitutional rights.

Mr. BROWNELL. I imagine this list which we are going to file with you will run into the hundreds, so that you will have plenty of examples.

Senator ERVIN. I am not asking about that. I am asking about what conditions exist in the 48 States of the United States at this particular moment which demand that we make this fundamental alteration in the law, which would deprive American citizens and State officials of their constitutional rights to trial by jury and of their constitutional right to be confronted by their accusers and to have an opportunity to cross-examine before action is taken against them.

Mr. BROWNELL. I am sure that, as a lawyer, you would rather have me give you

Senator ERVIN. And I might say also the right of indictment by a grand jury.

Mr. BROWNELL. I would say, as a lawyer, I am sure you would expect me to give you the specific examples, hundreds of them, which are illustrative, rather than trying to turn myself into a nationwide FBI and rush out and try to find for you specific examples of situations that may exist in the 48 States. It just does not seem to me to be a reasonable request to make, Senator.

Senator ERVIN. Mr. Attorney General, I am not asking you to turn yourself into an FBI. I am asking you to give me some specific facts with reference to this statute which would indicate what kind of a condition exists which demands that you be given injunctive power in your official capacity, and that other citizens of the United States be deprived of their constitutional and their statutory right to trial by jury, by changing the procedure which has existed since the drawing up of the Constitution of the United States.

Mr. BROWNELL. I submit, Senator, that I am giving you a reasonable answer to your request by agreeing to file with this committee hundreds of sets of facts which will illustrate better than I could do, by giving hypothetical cases, the reasons for our request for this legislation.

Senator HENNINGS. Will that satisfy you?

Senator ERVIN. No; that does not satisfy me because, Mr. Chairman, I think the Attorney General is enacting the role of the preacher that got fired down in the South Mountains of my county. The congregation fired him and he wanted to know why he was fired, and they said, "Well, it is just the way you preach." He said "What is the objection about my preaching? Don't I argufy?”

They said, "Yes; you sure does argufy." He said, "Don't I disputify?" They said, "Yes; you sure do disputify.”

He said, "Then what is the trouble with my preaching?" They said, "You don't show wherein."

The Attorney General has not shown "wherein" by revealing any set of facts to justify this drastic alteration in procedure in respect to the first portion of subsection 3 of section 1985 of title 42 of the United States Code. I will leave it at that and go to the next matter. Mr. BROWNELL. I am very happy to leave it at that, sir.

Senator ERVIN. Yes. You leave me just as ignorant as far as the necessity for this particular provision is concerned as I was when these hearings started yesterday morning.

Senator HENNINGS. Senator, the story you told about the preacher I thought happened in my State. I have heard other people say it happened in Virginia. It must have happened in lots of places.

Senator ERVIN. If a preacher in the South Mountains of Burke County, N. C., and an Attorney General of the United States pursue the same method of expounding, it is quite probable that a preacher in Missouri does likewise.

One more observation rather than a question before I leave this particular phase.

With great reluctance I am compelled to disagree with the Attorney General with respect to the benign nature of the injunctive process as authorized by these amendments as contrasted with the drastic nature of criminal prosecutions. I happen to live in a county that is very sharply divided in political opinions. It sometimes goes Democratic and sometimes Republican. I have a big heart and, under ordinary circumstances, I love all Republicans. However, I am going to make this honest confession: On election day and during the few weeks next preceding election day, notwithstanding my sweet disposition and my big heart, I am not overly fond of Republicans. I regret to say that I know some Republicans who have the same unfortunate attitude toward Democrats. These injunction proceedings would be brought in the weeks before elections when the air is surcharged with political emotion, and when the effort of the Federal Government to supersede the State governments in the field of registering voters and other matters of this nature would be likely to stir up strife and resentment among people who, like myself, entertain the benighted opinion that matters of this kind ought to be settled by local governments.

On the contrary, criminal prosecutions are usually tried some months after the supposed offenses are committed. They are tried not in the hectic and emotional days preceding an election, but they are tried when the emotions created by political controversies have subsided.

They are tried in a court where a calm judicial atmosphere prevails, and where political considerations are negligible. Therefore, I think that the injunctive process which will be brought into play when political tensions are existent will arouse much more antagonism than criminal prosecutions conducted in calm judicial atmospheres. I realize that people can argue that question both ways, but that is my honest opinion.

Mr. Attorney General, when the Constitutional Convention drafted our Constitution, it inserted in section 2 of article 3 this provision: The trial of all crimes, except in cases of impeachment, shall be by a jury. I believe you would agree with me that that is a good provision; would you not?

Mr. BROWNELL. I think the criminal law should have jury trial; yes. I have always favored jury trial. I will go on record unqualifiedly on that.

Senator ERVIN. Before a person can be put on trial before a petit jury on a criminal charge under our Constitution, he must be indicted by the grand jury if the crime is a felony; does he not?

Mr. BROWNELL. In all cases that are covered. There are some, of course, where you do not have to; petit, for instance.

Senator HENNINGS. In certain States felonies may be proceeded upon by information.

Senator ERVIN. Mr. Chairman, I am not talking about the constitution of the States. I am talking about the Constitution of the United States.

Mr. BROWNELL. There is somewhere where you can proceed by information.

Senator ERVIN. In Federal cases?

Mr. BROWNELL. Yes.

Senator HENNINGS. And State cases?

Mr. BROWNELL. That is right.

Senator HENNINGS. Felonies.

Senator ERVIN. I am more interested in the Constitution of the United States because we are legislators of the United States.

Mr. BROWNELL. I misunderstood you. You said in felony cases? Senator ERVIN. Yes.

Mr. BROWNELL. I beg your pardon; I misunderstood you there. I do not know of any cases in Federal practice where you can proceed without. I misunderstood.

Senator ERVIN. I don't, either.

Senator HENNINGS. In many States by statute the district or State attorney may proceed by information in felonies.

Mr. BROWNELL. I think that is correct.

Senator HENNINGS. I know it is.

Mr. BROWNELL. California, Mr. Olney reminds me, is one, and Missouri.

Senator HENNINGS. You can proceed on information and belief of the district attorney.

Senator ERVIN. Also, I want to call attention to the provision in the original Constitution about indictment by a grand jury.

Amendment 5: No person shall be held to answer for a capital or otherwise infamous crime unless on the presentment or indictment of a grand jury except in cases arising in the land, naval force, or in the militia.

Also the following provision:

Nor shall be compelled in any criminal case to be a witness against himself. Then there is another provision to the effect that he has a right to be confronted by his accusers, and I believe you would agree with me that those are wise safeguards where citizens of the United States are charged with crimes of a grade of felony.

Mr. BROWNELL. I think they are a very, very salutary part of the criminal law.

Senator ERVIN. And the right of trial by jury and confrontation by witnesses are also equally as valuable where citizens are charged with misdemeanors.

Mr. BROWNELL. The only comment I would like to make is I would not want the implication to arise that we ever practiced that same type of procedure in the civil courts.

In the civil courts of course you can seek an injunction or declaratory judgment even. In those cases you can accomplish very fine results, but it does not impair the criminal procedures of course.

Senator ERVIN. Some of the people of the United States in some of the States were not even content with the declaration in the Constitution securing the right to trial by jury in criminal cases. For

example, the people in my State held a constitutional convention, and declared that they thought that the right of trial by jury should be made secure in civil cases arising at the common law, which cases involved all existing civil cases except those arising in equity at that time. They passed a resolution refusing to ratify the Constitution of the United States unless and until they were assured that there would be amendments inserted in the Constitution not only protecting the rights of States as set forth in the 10th amendment, but also providing for the right of trial by jury in civil cases where as much as the sum of $20 was involved.

Mr. BROWNELL. I understood you yesterday to say that it was common practice in your courts there, Senator, to have these injunction cases even tried on affidavits.

Senator ERVIN. I will come to that. We don't try injunction cases on the merits on affidavits.

Senator BROWNELL. I think you made that clear.

Senator ERVIN. Pursuant to the attitude taken by the people of my State and the attitude of people in some of the other 12 Colonies, the Congress submitted and the States ratified certain amendments which included these amendments:

Amendment 7: In suits at common law where the values in controversy shall exceed $20, the right of trial by jury shall be preserved.

And also amendment 10, which is not directly germane to my specific point but I would like to put it in the record, which provides— The powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States, respectively, or to the people.

Now let us consider the fourth section of this bill, which purports to give the right to injunctive relief in the case of acts now punishable by criminal prosecutions. When you change to the injunctive process and confer upon the Attorney General the power to resort to injunctive process in case of acts heretofore declared crimes, you deny those people who heretofore had the right to trial by jury the right to trial by jury, don't you?

Mr. BROWNELL. No, sir.

Senator ERVIN. Why do you not?

Mr. BROWNELL. For the reasons we went over yesterday in some detail, that this does not in any way supplant the existing Federal criminal procedures.

This is an additional remedy. And as a matter of fact, Senator, I think it would only be fair to point out that at the present time a private individual can go into the Federal court, and does every year, in this very area of civil rights, and gets injunctive relief.

It is only that we are asking that the Government should have this right.

Senator ERVIN. The statute that you are seeking to amend in part 3, is the statute authorizing private suits for damages. Since a suit of that nature is an action in law as distinguished from a suit in equity, the party sued would be entitled to a trial by jury, would he not?

Mr. BROWNELL. We will not take any right that he has at the present time under the criminal law, we will not take away from him by this legislation. This asks for additional and alternative remedies. Senator ERVIN. We have an old expression down in my country