the proper time, and then any part of the substitute will be open to amendment.

Mr. MILLER. Including the jury trial provision?

The ACTING PRESIDENT pro tempore. Yes, including the jury trial provisions. Is there objection? The Chair hears none; and the amendment is withdrawn.

The question is on agreeing to the amendment offered by the Senator from North Carolina [Mr. ERVIN].

Mr. ERVIN. Mr. President, I yield myself 3 minutes of my 60 minutes.

The ACTING PRESIDENT pro tempore. The Senator from North Carolina is recognized for 3 minutes.

Mr. ERVIN. Mr. President, yesterday, when the Senate adopted the Morton amendment, it wiped out one of the disgraces and inequities of the Federal law with respect to criminal contempt.

I ask that another of these inequities and injustices now be wiped out. This amendment does not affect the power of a court to punish a man for civil contempt to enforce a judgment. This amendment applies only to criminal contempts and crimes.

Under existing Federal law, a person can be put three times in jeopardy for an act or omission constituting a criminal contempt if such act or omission also constitutes a crime.

First, he can be punished for civil contempt.

Second, he can be punished in the way a criminal is punished for the criminal contempt.

Third, he can be punished for the crime.

I am proposing to wipe out a part of this three-branched jeopardy.

I reiterate that this amendment does not affect the power of the court in civil contempt proceedings to enforce its judgments. It merely provides that an acquittal or conviction in a proceeding for criminal contempt arising under the provisions of the bill shall bar a subsequent prosecution for a crime based on the same act or omission; and that an acquittal or conviction in a prosecution for a specific crime shall bar a subsequent proceeding for a criminal contempt arising under the provisions of the bill out of the same act or omission. This is a just provision and it brings the law as to criminal contempts and as to crimes

into harmony with the constitutional provision that no man shall be twice put in jeopardy for the same offense.

Mr. MANSFIELD. Mr. President, I yield myself 1 minute.

The ACTING PRESIDENT pro tempore. The Senator from Montana is recognized for 1 minute.

Mr. DIRKSEN. Will the Senator from Montana yield?

Mr. MANSFIELD. Iyield.
Mr. DIRKSEN.

Mr. President, I wish to ask the distinguished majority leader about the procedure, now that we are operating under cloture.

Mr. MANSFIELD. In response to the question raised by the Senator from Illinois, let me say I think it would be advisable for Senators to remain in the Chamber from now on. We are operating under the 1-hour allowance per Senator, or the 100-hour rule, following cloture. There may be votes at any time.

It is anticipated that the Senate will continue to convene at 10 o'clock in the morning, including Saturdays, and will stay in session until a reasonable hour at night, say 8 o'clock or 9 or, if need be, a little later.

So I think it would be advisable for Senators to remain on the floor as much as they possibly can, from now on.

The ACTING PRESIDENT pro tempore. The question is on agreeing to the amendment of the Senator from North Carolina [Mr. ERVIN).

Mr. ERVIN. Mr. President, on this question, I ask for the yeas and nays. The yeas and nays were ordered.

The ACTING PRESIDENT pro tempore. On the question of agreeing to the amendment of the Senator from North Carolina [Mr. ERVIN] the yeas and nays have been ordered; and the clerk will call the roll.

The legislative clerk called the roll.

Mr. HUMPHREY. I announce that the Senator from Wyoming [Mr. McGEE], and the Senator from Wisconsin [Mr. NELSON] are absent on official business.

I also 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."

Proxmire Robertson Russell

Byrd, W. Va.

Jackson

Simpson

Smathers

Sparkman Stennis Symington Talmadge Thurmond Tower Walters Williams, Del. Yarborough Young, N. Dak.

Curtis

Eastland

Edmondson

Ellender

Ervin

Mansfield

McCarthy

McGovern McIntyre McNamara Metcalf

Muskle

Neuberger Pearson Prouty Randolph

The ACTING PRESIDENT pro tempore. The Chair is informed by the clerk that the yeas are 47, the nays are 48; and the amendment is rejected.

Mr. MANSFIELD subsequently said: Mr. President, things are becoming somewhat hectic this morning. I would hope that we would all work together to try to clarify the atmosphere, at least to a degree.

It is my understanding that the yeaand-nay vote on the Ervin amendment was incorrectly announced. Will the Chair either confirm or deny that statement?

The ACTING PRESIDENT pro tempore. The Chair was informed that the vote on the Ervin amendment was 47 yeas and 48 nays, and that the amendment was not agreed to. The Chair is now informed by the clerk that, on recalculation, the vote is 49 yeas and 48 nays. So the amendment is agreed to, It is so ordered.

The LEGISLATIVE CLERK. On page 73, between lines 20 and 21, add a new section reading as follows:

SEC. 1102. No person should be put twice in jeopardy under the laws of the United States for the same act or omission. For this reason, an acquittal or conviction in a prosecution for a specific crime under the laws of the United States 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

Mr. ERVIN. Mr. PresidentThe PRESIDING OFFICER. much time does the Senator yield to himself?

Mr. ERVIN. Five seconds.

Mr. President, a number of Senators have asked me to call for the yeas and nays on the amendment because they did not understand the proposal yesterday because of confusion in the Senate. So I ask for the yeas and nays on the amendment.

Mr. HUMPHREY. Mr. President, will the Senator yield for a moment?

Mr. ERVIN. I yield.

Mr. HUMPHREY. Will the Senator explain the differences between his amendment as offered yesterday and the amendment as modified?

Mr. ERVIN. The amendment is modified so as to make it clear that it is applicable only to cases of prosecution for crimes under the laws of the United States.

Mr. HUMPHREY. The Senator may recall that yesterday in a private conversation I showed concern lest the amendment would involve both State and Federal law, in which instance there might be, let us say, an acquittal under State law in relation to a certain type of activity, thereby barring prosecution under Federal law.

Mr. ERVIN. The change is made in order to overcome the misgivings of the Senator from Minnesota.

Mr. HUMPHREY. Mr. President, I hope that the Senate will agree to the amendment. I thank the Senator from North Carolina for his forbearance, understanding and cooperation.

Mr. MAGNUSON. Mr. President, I yield myself one-half minute.

The PRESIDING OFFICER. The Chair recognizes the Senator from Washington for one-half minute.

Mr. MAGNUSON. I am very pleased that the Senator from North Carolina and other Senators involved have changed the wording of the amendment. Yesterday I voted against the amendment of the Senator from North Carolina because I did not think it was legally clear enough. But the amendment as now modified is very clear, and I wish to be recorded as in favor of it.

Mr. JAVITS. Mr. President, I yield myself 1 minute.

The amendment has been discussed with me and with other Senators. If we are going to adopt any amendment such as the one proposed, the pending amendment is probably the best we can do. I am the first to make that statement. But I believe the Senate ought to know what it is doing. What the Senate is doing

Mr. HOLLAND. Mr. President, may we have order?

The PRESIDING OFFICER. The Senate will be in order. Senators will take their seats.

The Senator may proceed.

Mr. JAVITS. Mr. President, if the Senate adopts the amendment, it will change not only uniform case law throughout the United States, but also existing Federal statutory law and will treat specially only this particular bill, the civil rights bill. The Clayton Act, title 18, United States Code, section 3285,

now provides exactly to the contrary for all proceedings in Federal courts.

The PRESIDING OFFICER. The Senator's time has expired.

Mr. JAVITS. Mr. President, I think the Chair took most of my time getting the Senate to come to order. I do not think that should be charged to an individual Senator. I make that point to the Chair.

I think the Chair should be indulgent. I should like to proceed for an additional 30 seconds.

The PRESIDING OFFICER. Without objection, the Senator may proceed.

Mr. JAVITS. What the Senator has done by modifying his amendment, is to eliminate the danger of State courts giving quick acquittals in order to defeat contempt proceedings under the act. But we still have the Clayton Act provision and the uniform precedents in the Federal courts, where the time-honored rule has been that the courts may punish for criminal contempt as well as try for the crime, since they are two totally different offenses in terms of law. If the Senate wishes to change that, it should do so only with the full understanding of the fact that it would thereby except this particular bill from the general law. If that is the decision of the Senate, that is it; but at least we ought to know what we are doing.

Mr. KUCHEL. Mr. President, I yield myself 1 minute.

I wish to ask a question or two of the Senator from North Carolina.

Let us assume that a defendant is guilty of continuing contempt. Let us assume that, in accordance with the provisions of the measure, he is punished for his contempt and the punishment is exacted, but the defendant continues to be contemptuous of the court; that is to say, there is a series of contemptuous acts based on what he has done and does. Would the Senator's amendment impinge on or restrict the power of the Federal court to continue to enforce its authority by succeeding contempt citations?

Mr. ERVIN. Absolutely not, because after he is judged to be in contempt, he could be guilty of another criminal contempt. In addition, it would not affect the power of the court, by civil contempt, to enforce its judgment. This amendment would not take from the judge the power to hold a defendant in jail for civil contempt until the last lingering echo of Gabriel's horn trembles into silence.

The PRESIDING OFFICER. The time of the Senator has expired.

The question is on agreeing to the amendments of the Senator from North Carolina [Mr. ERVIN].

The yeas and nays have been ordered, and the clerk will call the roll.

The legislative clerk called the roll. Mr. HUMPHREY. I announce that the Senator from New Mexico [Mr. AnDERSON] and the Senator from Maryland [Mr. BREWSTER] are absent on official business.

I also announce that the Senator from California [Mr. ENGLE] is absent because of illness.

I further announce that, if present and voting, the Senator from Maryland {Mr. BREWSTER] Would vote "yea."

Mr. KUCHEL. I announce that the Senator from Massachusetts [Mr. SALTONSTALL] is necessarily absent and, if present and voting, would vote "yea." The result was announced-yeas 80, nays 16, as follows:

Burdick Byrd, Va. Byrd, W. Va. Cannon

Brewster

So Mr. ERVIN'S amendments were agreed to.

EDITORS' NOTE:

House 2-10-64

p. 2728

AMENDMENT OFFERED BY MR. DOWDY Mr. DOWDY. Mr. Chairman, I offer an amendment.

The Clerk read as follows:

Amendment offered by Mr. DOWDY: Page 84, line 8, strike out sec. 717 and insert in lieu thereof:

"SEC. 717. If any provision of this title shall be held invalid, the remainder of this title shall not be affected thereby."

Mr. DOWDY. Mr. Chairman, section 717, as contained in the pending bill is

ridiculous. It provides that should a lawsuit be tried involving some provision of the title which the court finds to be invalid, nevertheless, the provision would continue to be valid as to all other persons. What this amounts to, the court would have to hear suits and declare the provision invalid as to each person, individually. This amounts to repealing precedent. My amendment would correct this by providing that once a provision is declared invalid, it will be invalid, but will not affect other provisions of the title.

I urge the adoption of the amendment. The CHAIRMAN. The question is on the amendment offered by the gentleman from Texas (Mr. DOWDY].