The ACTING PRESIDENT pro tempore. The present Presiding Officer believes that under the rule the Chair has the power to maintain order in the Senate. Mr. GORE. Mr. President, it is re:spectfully suggested that either the pres ent Presiding Officer-or such other Pre!siding Officer as may be presiding during the course of the many rollcalls that will apparently be necessary on this issueshould exercise such responsibility. The ACTING PRESIDENT pro tempore. If order is not maintained in the Senate, the present Presiding Officer will attempt to maintain order. And there will be order. Mr. GORE. Mr. President, a point of order. The Presiding Officer has just ruled that the clerks should not be present during the rollcall. I have not observed anyone depart. Mr. HICKENLOOPER. The regular order. The ACTING PRESIDENT pro tempore. The clerk will call the roll. The legislative clerk proceeded to call the roll. Mr. HUMPHREY. I announce that the Senator from California [Mr. ENGLE] is absent because of illness. I further announce that, if present and voting, the Senator from California [Mr. ENGLE] would vote "nay." The result was announced-yeas 51, nays 48, as follows: So Mr. MORTON'S amendment as modified, to the amendment of Mr. TALMADGE was agreed to. Mr. MORTON. Mr. President, I move that the vote by which the Morton amendment (869), as modified, to the Talmadge amendment (513), was agreed to, be reconsidered. Mr. MUNDT. Mr. President, I move that the motion to reconsider be laid on the table. Mr. ELLENDER. Mr. President, I move that the motion to reconsider be laid on the table. The motion to lay on the table was agreed to. Title XI: Double Jeopardy (Ervin Amendments) EDITORS' NOTE: Senator Ervin (D., N. C.) initially introduced a perfecting amendment to the Talmadge amendment designed to bar an individual from being placed in double jeopardy under the Civil Rights Act. This amendment was agreed to a roll call vote, 49-48. After the Talmadge amendment was withdrawn, Senator Ervin introduced another amendment modified to conform to the Mansfield-Dirksen Substitute. The modifications made clear that the double-jeopardy aspect of the amendment applies only to cases of prosecution for crimes under the laws of the U.S. and not to situations involving both state and federal law. The Ervin amendment, as finally adopted by a roll call vote of 80-16, provides that no one shall be put twice in jeopardy under the laws of the U.S. for the same act or omission and that an acquittal or convic tion in a prosecution for a specific crime under the laws of the U. S. shall bar a proceeding for criminal contempt based on the same act or omission and ari sing under the Civil Rights Act. Conversely, the amendment also provides that an acquittal or conviction of criminal contempt in a proceeding brought under the Civil Rights Act shall bar prosecution for a specific crime under the laws of the U.S. based on the same act or omission. The Ervin amen dm en t appears in Section 1102 of the Act. Sen ate 4-29-64 p. 9569 Mr. ERVIN. I call the Senator's attention to another provision of the Constitution, embodied in the fifth amendment. I ask the Senator if this is not a part of the fifth amendment: "nor shall any person be subject for the the same offence to be twice put in jeopardy of life or limb;" Mr. JOHNSTON. Yes. Mr. ERVIN. I ask the Senator from South Carolina if that is not an additional protection which the Constitution throws around every person in order that he might not be punished twice for the same offense. Mr. JOHNSTON. The Senator is entirely correct. In the legal field we know that as double jeopardy. Mr. ERVIN. Does not the Senator from South Carolina agree with the Senator from North Carolina that it is a legal iniquity to permit any man to be punished twice for the same act or omission? Mr. JOHNSTON. There is no question about it in my mind. It is wrong to try a man twice for the same offense. If we did not have that protection, a district attorney, if he were so minded, could keep pestering a man and trying him over and over again. Mr. ERVIN. Does not the Senator from South Carolina agree with the Senator from North Carolina that under existing law, in respect of contempts, a man can be twice put in jeopardy under the contempt law, in that he can be first punished for civil contempt and then punished for criminal contempt? Mr. JOHNSTON. The Senator is entirely correct. Mr. ERVIN. Does not the Senator from South Carolina agree with the Senator from North Carolina that when the alleged contemptuous act or omission also constitutes a crime, an accused can be punished a third time for the crime based upon the same act or omission as the alleged civil and criminal contempts? Mr. JOHNSTON. Yes. Mr. ERVIN. Is it not true that there are many instances in which an alleged contemptuous act also constitutes crime, permitting an accused to be tried and punished a third time for the same act or omission? Mr. JOHNSTON. There is no question in my mind that that is true. Mr. ERVIN. Does not the Senator from South Carolina agree with the Senator from North Carolina that this is a legal iniquity and inconsistent with any legal system which is designed to promote the administration of justice rather than the infliction of double or triple punishment? Mr. JOHNSTON. The Senator is entirely correct. All such cases are an infringement upon the rights of the States. Mr. ERVIN. I ask the Senator from South Carolina whether it is not true that the seventh amendment to the Constitution provides that in suits at common law, where the value in controversy exceeds $20, the right of trial by jury shall be preserved? Mr. ERVIN. Does not the Senator from South Carolina agree with the Senator from North Carolina that when the Constitution of our country is so deeply concerned about the right of trial by jury that it provides there can be no determination of the issues of fact, except by trial by jury, in a suit at common law where the amount involved exceeds $20, Congress ought to provide the right of trial by jury for those who are charged with criminal contempt, for which a person can be punished by as much as years imprisonment? Mr. JOHNSTON. The Senator is correct. Mr. ERVIN. Does not the eighth amendment to the Constitution provide: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted. Mr. JOHNSTON. The Senator is correct. In a great many cases when an excessive bond is set, lawyers go to court and argue for a reduction of the bond, and often the bond is reduced. Mr. ERVIN. Does not the Senator from South Carolina agree with the Senator from North Carolina that courts have held in a great many cases, including those which are brought by the United States, there is no limit whatever in the amount of the fine or the term of imprisonment which a judge can impose upon an accused in a trial for criminal contempt without a jury, except the nebulous and uncertain limit imposed by the eighth amendment with respect to cruel and unusual punishment? Mr. JOHNSTON. The Senator is correct. Mr. ERVIN. Does not the Senator from South Carolina agree with the Senator from North Carolina that under the interpretation of this phrase it is virtually impossible for any lawyer to determine what the limits are? Mr. JOHNSTON. No lawyer can predict what a court may decide in that respect. Mr. ERVIN. Is it not true that this is the situation in respect to all criminal contempt cases in which the United States is a party? Mr. JOHNSTON. The Senator is cor rect. Mr. ERVIN. I thank the Senator from South Carolina. new section between line 7 and 8, reading as follows: SEC. 1104. No person should be put twice in jeopardy for the same act or omission. For this reason, an acquittal or conviction in a prosecution for a specific crime shall bar a proceeding for criminal contempt, which is based upon the same act or omission and which arises under the provisions of this Act; and an acquittal or conviction in a proceeding for criminal contempt, which arises under the provisions of this Act, shall bar a prosecution for a specific crime based upon the same act or omission. Mr. HUMPHREY. Mr. President, will the Senator from North Carolina yield, to permit me to propound a parliamentary inquiry? The ACTING PRESIDENT pro tempore. The Chair is so informed. Mr. HUMPHREY. In view of the action taken yesterday on the Morton amendment and in view of the fact that the Morton amendment has now been incorporated into the leadership "package" substitute, would not it be proper that we ask unanimous consent to vacate the order for the yeas and nays and also to withdraw the Dirksen-Mansfield amendment? The ACTING PRESIDENT pro tempore. That may be done. Mr. HUMPHREY. Mr. President, will the Senator from North Carolina yield, for that purpose? Mr. ERVIN. Yes, with the understanding that any time required for that purpose will not come out of my 60 minutes. Mr. HUMPHREY. Then, Mr. President, in order to clarify the parliamentary situation, I now ask unanimous consent that the Dirksen-Mansfield jury trial amendment, on which the yeas and nays have been ordered, be withdrawn, and that the order for the yeas and nays on the question of agreeing to that amendment be vacated. The ACTING PRESIDENT pro tempore. Is there objection? Mr. JAVITS. Mr. President, reserving the right to object Mr. MANSFIELD. Mr. President, we are now proceeding under the time limitation, of course. The ACTING PRESIDENT pro tempore. Yes. Every Senator will be speaking in his limited time. Mr. JAVITS. Mr. President, I yield myself 1 minute. The ACTING PRESIDENT pro tempore. The Senator from New York is recognized for 1 minute. Mr. JAVITS. Mr. President, I think it is most unfortunate that we are de nied reasonable opportunity to have debate on the bill and on the substitute. However, the Senator from Minnesota has made a commitment, and he is floor manager of the bill. I am not happy about the commitment, but I shall abide by it. I think the distinguished Senator feels, as I do, that the other body will not accept this amendment. It did not accept it before. This is not a shibboleth for us or something whereby we shall be absolutely shipwrecked, of course. What action may be taken by the other body is something we cannot tell at this time. In short, it will be a provisional bill. We cannot get away from that. The Senator is committed; but at the same time, we shall be handicapped. In order to get a bill under consideration, we must make some compromise on this provision. So we must be openminded about it. We Mr. HUMPHREY. I can only speak for the Senator from Minnesota. are honorbound by the commitment. What happens in the future must be determined by the two Houses of Congress, but I have made a commitment and I intend to stand by it. Mr. JAVITS. Senator in it. And I will support the Mr. MILLER. Mr. PresidentThe ACTING PRESIDENT pro tempore. The Senator from Iowa. Mr. MILLER. Mr. President, I yield myself 30 seconds. The ACTING PRESIDENT pro tempore. The Senator from Iowa is recognized for 30 seconds. Mr. MILLER. Mr. President, I want to ask the Senator from Minnesota when this amendment was incorporated in the substitute? Mr. HUMPHREY. This morning, at the desk. Mr. MILLER. Was that done as a perfecting modification? Mr. HUMPHREY. It was a new substitute proposal which displaces the one that had previously been entered. The only change is the modification. Mr. MILLER. Mr. President, a parliamentary inquiry. Mr. HUMPHREY. On the Senator's own time, please. Mr. MILLER. Yes. Is the modification with respect to the jury trial provision of the bill subject to amendment now? The ACTING PRESIDENT pro tempore. The substitute may be offered at |