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the achievements of thought in the sciences, the arts, in law, in human solidarity; it carries men from the elementary life of the tribe to the highest human expression of power which is empire; it entrusts to the ages the names of those who died for its integrity or in obedience to its laws; it puts forward as an example and recommends to the generations that are to come the leaders who increased its territory and the men of genius who gave it glory. When the sense of the state declines and the disintegrating and centrifugal tendencies of individuals and groups prevail, national societies move to their decline."

I for one am not prepared to accept the views of the late and unlamented Benito Mussolini on the corporate state. I am sure that the proponents of title III are not prepared to do so either. But in their zeal for what they regard as civil rights and what I regard as individual and national corruption, they have not only thrown away the rights of individuals and the rights of States of the American Union, but they have also thrown away a basic right which is so intimately intertwined with the rights of both individuals and the 50 States. That right is trial by jury, and I propose at this point to explain to them, in the light of history and in terms of the blood, sweat, and tears of mankind, the meaning of that right to trial by jury which the proponents of title III are willing to throw away with a wave of their mystical legislative wand.

The trail in history of the struggle leading to trial by jury as we know it today is marked by the blood of freedom loving men from the time of medieval England under William the Conquerer in the year 1000 until 1964 when street riots have coincided with the great debate over the civil rights bill of 1964. The struggle to get from under the kings and other despots of the ages, who ruled men with iron, prejudiced fists, is a long and bitter one worthy of every one of us to review at this time--a time that finds some of us in the United States eager to consider taking this right away from the American people, the inhabitants of one of the few remaining citadels of the truly free world. It is almost inconceivable-certainly I never thought I would see such

an attack against the pillars of freedom in this country in my lifetime.

First, I wish to outline the English origins of trial by jury. Mcdern scholars agree that trial by jury as we know it today had its origin in medieval England in the first century and a half of Norman rule when William the Conqueror, beginning in 1066, and his heirs sought to strengthen their hold upon the foreign land which they had conquered.

The earliest trace of the jury is found in the sworn inquest, originally a Frankish, or perhaps even a Roman, practice whereby the ruler sent out his agents to question people throughout the kingdom on any matter of government or administration which interested him. William the Conqueror instructed his agents to summon a number of reliable, knowledgeable men in "every shire and hundred," put them on oath to tell the truth, and then ask about landholdings, property, previous tax assessments, and similar matters. These sworn inquests provided the material for the Domesday Book, which recorded the names and properties of all landholders.

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The scope of the jury was greatly expanded by Henry II as a means of indicting those who had violated the King's peace by robbery, thievery, murder, arson, or counterfeiting. In these assizes, the itinerant justices were assigned definite schedules and areas in which they were to try in the King's name all men accused by their neighbors of these misdeeds. Henry II also initiated three new actions whereby the decision of a jury would determine whether anyone had been wrongfully ousted from possession-as distinct from title-and if so, would immediately reinstate him.

EDITORS' NOTE: Attacking the Mansfield-Dirksen substitute, Senators Ervin (D., N.C.) and Long (D., La.) maintained that it would be possible under the bill for a judge to function as the prosecutor, the judge, and the jury. Arguing in favor of the Talmadge amendment, which gave the accused the right to request a trial by jury in any criminal contempt proceeding arising under any section of the Act, Senator Ervin noted that an identical amendment was incorporated in the Civil Rights Act of 1957 through the efforts of the then Senator Lyndon B. Johnson (D., Tex.)



pp. 10164, 10165

Mr. LONG of Louisiana. Mr. President, will the Senator yield for a question?

Mr. ERVIN. I yield for a question. Mr. LONG of Louisiana. When a man is faced with a prospect of being locked up in jail for a period of 30 days, would not the Senator say—whether it is called a criminal or civil offense that the man is being denied his liberty and is being treated as though he were a criminal?

Mr. ERVIN. There is no question about that. And under all the provisions of this bill in its present form, except title I and title II, a person could be locked up, not for just 30 days, but until his punishment is deemed to be so severe that a court can find that it represents cruel and unusual punishment under the eighth amendment to the Constitution. In other words, the courts have held that under the decisions of the court which are applicable to all the provisions of this bill except titles I and II, a person may be subjected to virtually unlimited punishment. Other than the eighth amendment prohibition against cruel and unusual punishment there is no limitation on his punishment, and the courts have held that he may be sent to jail after a trial by a judge without a jury for as long as 4 years. I have this case before me.

Mr. LONG of Louisiana. Is it not also correct that in the absence of the jury trial amendment, it would be possible under this bill for the judge to exercise the function of the accuser, the Judge, and the jury?

Mr. ERVIN. That is undoubtedly correct. He would be the accuser, he would be the prosecutor, he would be the Judge, he would be the jury, and if he exercised his unusual power of punish

ment, we might say he would almost be the executioner.

Mr. LONG of Louisiana. Mr. President, will the Senator yield for a further question?

Mr. ERVIN. I am glad to yield.

Mr. LONG of Louisiana. Is it not likely that in some of these cases where and the jury, the judge himself might be the judge would be acting as the judge acting under such circumstances that he would have an interest in the matterbeing the man who issued the original order, the man who had some knowledge of the facts that the bill set out. The judge, for a number of reasons, might He might be a man who could have been actually be disqualified to sit as a juror. challenged for cause, for a half dozen different reasons, if he were on the jury panel.

Mr. ERVIN. There is no question about that. That is a very important question. Under the Dirksen-Mansfield amendment, the man would be denied the right of a trial by jury unless the Judge sentenced him to more than 30 than $300. days imprisonment, or fined him more

If the judge who issues the citation requiring the accused to appear before him and show cause why he should not be adjudged guilty of criminal contempt is the same judge who tried the case on its merits, it is reasonable to assume that in all probability he has already formed an opinion as to the guilt of the accused. Under this assumption, it would be a travesty upon justice for the judge to try the accused unless the judge exercises his discretionary power and grants him a jury trial.

be true in some cases that the judge Mr. LONG of Louisiana. Might it not could occupy a position that would be almost that of a party litigant, in that he had had the man before him, had heard the facts, and had issued the order? He had said, "Either you do this, or refrain from doing this." When

the judge hauled him back into court he said, "I remember you. You came in here 2 weeks ago. I told you not to do this. Now it looks as if you have done it. What have you to say for yourself?" Does that not pretty much put the judge in the position of being almost a party litigant?

If one is to understand the laws and institutions of today, he must know the events of yesterday which gave them birth. For this reason, we deem it necessary to consider the origins of relevant

Mr. ERVIN. As some great observer constitutional and legal safeguards. said:

The founders of our Government were wise men. They knew that tyranny uses the forms of law to crush those who oppose her will. They knew that the right of trial by jury is the best security of the people against governmental oppression. They knew that the surest test of the credibility of a witness is his confrontation and cross-examination by the adverse party.

They knew the history of the long struggle of the English people to secure and preserve such basic legal safeguards as the right of trial by jury and the right to confront and cross-examine adverse witnesses.

They knew the history of the repeated efforts of tyrannical kings and subservient parliaments to deprive the English people of the benefits of such legal safeg ards

Judges do not divest themselves of their humanity when they put on black robes and ascend the bench. They still remain human beings, and they are subject more or less to the same passions which other human beings are subject to.

law; and the statutory right of the benefit of limited punishments in indirect contempt cases of the same nature.

When a judge issues an order for a man to do a specific act or to refrain from a specific omission, and the man violates the order, it is an act of human instinct for the judge to feel some irritation toward that man. It is putting a human being in a rather bad way to say after his order is disobeyed, that he is to be the judge who is going to issue the show cause order to bring the person in for a hearing on contempt, and then he is to be the accuser and the prosecutor, and also the judge and jury. That is normally the way that things happen. Normally the judge who issues the order to the man who is the subject of the hearing is the judge who tries the contempt case without a jury.


Mr. LONG of Louisiana. I thank the Senator.

Mr. ERVIN. Before the debate is over, I trust I shall have an opportunity to go very fully into the matter of the jury trial in contempt proceedings. Incidentally, I trust I shall have an opportunity to read to the Senate one of the finest speeches that was ever made on the subject. That was a speech that was made by the then Senator Lyndon B. Johnson, on August 1, 1957, when the Senate, moved by the eloquence of the then Senator Lyndon B. Johnson, adopted an amendment to the Civil Rights Act of 1957 in the identical words of the Talmadge amendment.

Mr. President, the Constitution and Congress have established these basic safeguards to protect all Americans from bureaucratic and judicial tyranny: The constitutional right of indictment by grand jury; the constitutional right of trial by petit jury; the constitutional right to confront and cross-examine adverse witnesses; the statutory right of trial by jury in indirect contempt cases where the alleged contemptuous act constitutes a crime under Federal or State

They knew the history of the court of star chamber and rightly deduced from it "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"-U.S. Circuit Judge Henry C. Caldwell in the American Federationist for May 1910.

They knew the history of Chief Justice Jeffreys and his bloody assizes and rightly inferred from it that tyranny on the bench is as objectionable as tyranny on the throne.

They knew that in 1765 the British Parliament, at the instigation of King George III and his ministers, enacted the Stamp Act and other measures whereby they deprived American colonists of the right of trial by jury in cases arising under the revenue laws by a device astoundingly similar to that invoked by the bill, namely, by extending beyond its ancient limits, the jurisdiction of the courts of admiralty" in which trial by jury was not available.

They knew that the Stamp Act Congress, which was attended by delegates from nine of the Thirteen Colonies,

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forthwith met in New York and adopted the Colonial Declaration of Rights of October 19, 1765, condemning this action of Parliament on the ground "that trial by jury is the inherent and invaluable right of every British subject in these Colonies."

They knew that in 1764 and 1768 the British Parliament, at the urging of King George III and his ministers, enacted the Sugar Act and the statute known as 8 George III, chapter 22, whereby they deprived American colonists of the right of trial by jury in cases arising under the laws relating to trade and revenue by a repetition of the device resembling that invoked by the bill, namely, "by extending beyond their ancient limits the powers of the courts of admiralty" in which trial by jury was not available. Mr. LONG of Louisiana. Mr. President, will the Senator yield?

Mr. ERVIN. I am glad to yield to the Senator from Louisiana.

Mr. LONG of Louisiana. Is the Senator aware of the fact that modern-day students of British history-and I have in mind Englishmen themselves-look upon the Members of Parliament who enacted such laws as being unworthy statesmen, who were responsible for a war that never should have happened, from the British point of view?

Mr. ERVIN. The Senator is correct. One of the great English statesmen who took that attitude, and who even protested against these laws in British Parliament, was Edmund Burke, who was one of the greatest statesmen the English Government has ever known.

Mr. LONG of Louisiana. Is the Senator further aware of the fact that the leaders of the British Parliament who were responsible for such outrages were later found to have been corruptionists and, in some cases, unworthy of public trust, and the kind of men who, from the point of view of history, the English people today feel were. unfortunately, the leaders of their country at that point in the history of England?

Mr. ERVIN. I do not know anything about their record with respect to corruption, but in my judgment, no person who believes in the right of the individual to be free from governmental tyranny would countenance the denial of the right of trial by jury to any man who is subject to being fined or imprisoned.

Mr. LONG of Louisiana. Is the Senator aware of the fact that many outstanding people from that day forward have had great sympathy and respect for the American colonists and their revolt against these types of outrages?

Mr. ERVIN. There is no question that the American colonists who revolted against the denial of trial by jury in the revenue cases arising out of the acts of Parliament deserve the same credit as did the barons who compelled King John to grant the Magna Carta at Runnymede in 1215.

Mr. MORTON. Mr. President, will the Senator yield?

Mr. ERVIN. I am glad to yield to the Senator from Kentucky.

Mr. MORTON. Is it true that in 1957 the Senate adopted the so-called O'Mahoney amendment, which established the right of trial by jury for criminal contempt proceedings?

Mr. ERVIN. The Senator is correct. Mr. MORTON. In 1959 the so-called Landrum-Griffin-Kennedy bill was passed, with an amendment, which was accepted by the late President, then a Member of this body, and which added jury trials to that bill. Is that correct?


The Senator is correct. I am proud to say that I am the one who drew the jury trial amendment which was adopted as a part of the Landrum-Griffin bill.

Mr. MORTON. Yes.

Mr. ERVIN. I am also proud of the fact that all Senators supported my amendment. There was no opposition to it.

Mr. MORTON. The Senator from North Carolina, able constitutional lawyer that he is, presented that amendment, and it was adopted unanimously by the Senate. Is the Senator awareand I feel sure he is that for the past 2 or 3 months there has been on the calendar a bill, which was reported by the Committee on Commerce, dealing with the public accommodations section of the pending bill?

Mr. ERVIN. I had overlooked that point. I ask unanimous consent that the Senator from Kentucky [Mr. MORTON] be permitted to read the jury trial amendment in the public accommodations bill reported by the Commerce Committee, without my losing my right to the floor, and without any subsequent remarks by me being counted as a second speech on the pending business.

Mr. ERVIN. Does not the Senator from South Carolina agree with the Senator from North Carolina that in the light of the demand for government by injunction in the bill now before the Senate, and the fact that there have been such abuses of government by injunction

Title XI: Jury Trial for Criminal Contempt
(Colmer Amendment)

EDITORS' NOTE: In the House, Representative Colmer (D., Miss.) indicated he intended to introduce an amendment guaranteeing the right of trial by jury in all cases of civil and criminal contempt arising under the Civil Rights Acts of 1957, 1960, and 1964, and limiting the penalty upon conviction to a fine of $1,000 or imprisonment for six months. His amendment never came

to a vote.


2-6-64 p. 2272

in the labor field, the geology professor from North Carolina, Collier Cobb, spoke correctly when he said that wise men learn by the experience of others; fools learn by their own experience; but the majority of us learn neither by the experience of others nor by our own.

Mr. COLMER. Mr. Chairman, I could not attempt to discuss this very important matter in 3 minutes. This demonstrates what we have been talking about all the time, those of us who have been trying to prevent the rush to get this bill through. I am not going to take those 33 minutes, Mr. Chairman. The amendment offered by the gentleman from South Carolina is just a small bite at the cherry providing for the same treatment in one section of this bill as in the other. I have an amendment which I propose to offer later on that would go to the whole basic question of guaranteeing the right of all alleged offenders by a jury of their peers. I propose, at the proper time, to offer that amendment.

In this connection, I should like, Mr. Chairman, to submit for the RECORD the proposed amendment. It follows:


Amend H.R. 7152 by adding the following as title XI thereof:

"Sec. 1101. Title 42 of the United States Code, section 1995, Public Law 85-315, part V, section 151, 71 Stat. 638, is amended to read as follows:

"'In all cases of civil and criminal contempt arising under the provisions of this Act, or under the provisions of the Civil Rights Acts of 1957 or 1960, the accused, upon conviction, shall be punished by fine or imprisonment or both: Provided however, That in case the accused is a natural person the fine to be paid shall not exceed the sum of $1,000 nor shall imprisonment exceed the term of six months: Provided further, That in any such proceeding the accused shall have the right to trial by jury, which shall conform as near as may be to the practice in other criminal cases.

""This section shall not apply to contempts committed in the presence of the court or so near thereto as to interfere directly with the administration of justice nor to the misbehavior, misconduct, or disobedience, of any officer of the court in respect to the writs, orders, or process of the court'."

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