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The Attorney General then proceeded to refer to the strong indignation which was provoked in one county as a result of an FBI investigation regarding alleged discrimination in jury service. Although the specific case was not referred to, he undoubtedly had reference to Reece v. Georgia, supra, in which protest was justifiably made by members of the Georgia delegation as well as local officials, when an FBI investigator suggested to the Cobb Solicitor General that the State not retry this brutal, twice convicted rapist, although the issue of jury service by Negroes had nothing to do with the accused's guilt, and the Court's decision itself merely reversed a judgment sustaining a demurrer to the motion to quash.

We have information that about this time a militant pressure group had been critical of Mr. Brownell's prosecution of civil-rights cases, and since this was the first alleged incident to arise during this period, Georga was picked as the victim to appease the political-action zealots. Needless to say, the FBI finally gave Cobb County a clean bill of health.

However, if, as Mr. Brownell admits, criminal proceedings always cause strained feelings in any given area, it would seem that injunctive proceedings would cause even more friction. When injunctions are issued, it puts the Court in a more or less administrative position, and ultimately may involve criminal proceedings as well as civil. Whereas regular criminal proceedings are always against an individual, injunctions are brought against officials requiring official action, and brings the State and Federal Government into sharper conflict than any isolated criminal prosecution ever could.

S. 904 amends 18 United States Code Annotated, sections 1581, 1583, and 1584, relating to returning or placing one in peonage, by enlarging coverage of the section to cover attempts to do such acts. While I see no immediate objection to this amendment, I likewise see no need for it, since the number of prosecutions under these laws are becoming progressively smaller.

S. 905 would amend 18 United States Code Annotated 241 so as to extend its coverage to persons and not just citizens. This section relates only to rights and privileges "secured" to a person, i. e., those that devolve directly on the person from the Constitution rather than the State-conferred rights which the 14th amendment merely requires be given equal to all, and subject to the due process clause.

Paragraph (b) would extend section 241 to cover similar crimes committed by only one person, whereas paragraph (a), the original provision, only covers conspiracies.

Here again, the cumulative effect of this extension of Federal power is unjustified at a time when its need is least felt. As pointed out in the Slaughter House cases, the Federal-State balance has already been upset enough by the 14th Amendment and existing laws. In the nature of things, it is impossible to predict accurately the effect of any one law, but it is unquestionable that each successive whittling down of State authority, whatever the intervening time between steps, will eventually lead to one strong centralized government which, in a country as large and powerful as ours, will be uncontrollable.

The same reasoning applies to the amendment to section 242 of title 18, relating to deprivations, under color of law, of rights secured or protected, by increasing the punishment to fine of $10,000, and imprisonment up to 20 years, where maiming or death of the victim re

sults. This, of course, is an attempt to enact a Federal statute on murder.

It is material to note here that Attorney General Brownell expressly declared before the House committee that he was not proposing any amendments to section 241 and 242 of title 18, which indicated the administration's belief that no such amendments were needed.11

Section 3 of S. 905 attempts to do exactly what the Court in the Slaughter House cases, supra, said could not be done, and that is to make every violation of law a Federal offense. This section undertakes to usurp the functions of the Court by defining what shall be considered deprivations of due process and of immunities and privileges. For example, it is declared that "the right to be immune from exactions of fines without due process of law" shall be included within the protection of 18 United States Code 242.

Under this unlimited definition, a judge who makes an error in deciding a case in State court could be prosecuted in Federal court and sentenced to jail because of his honest mistake of judgment as to what constituted a denial of due process. Within recent years, the Supreme Court has consistently expanded the meaning of due process to invalidate State court procedures which theretofore were upheld. This section would require a State court judge to outguess the Supreme Court by predicting what it would eventually hold, on pain of imprisonment.

Paragraph 3 makes the illegal obtaining of confessions likewise subject to prosecution. At the 1956 annual meeting of the National Association of Attorneys General, held in Phoenix, Ariz., one of the top executives in the FBI discussed the numerous decisions of the Supreme Court relating to confessions during the last 20 years or so, and after noting the division in the Court itself in this field, declared that the resulting uncertainty imposes an almost impossible burden on FBI agents to ascertain what the law is. He concluded by remarking that the Court, together with sociologists, had succeeded in taking the handcuffs off the criminals and placing them on law-enforcement officers.

The Court has already held that section 242 applies to the willful extraction of confessions by force and violence (Williams v. U. S. [1951] 341 U. S. 97, 95 L. Ed. 774, 71 S. Ct. 576), and the purpose of the amendment could only be to enlarge this construction to cover situations where there was no willful act, as required in the Screws decision, supra. Otherwise, the amendment is redundant.

Paragraph (4) would make every illegal arrest a Federal offense. In Snowden v. Hughes ((1944) 321 U. S. 1, 11, 88 L. Ed. 497, 504, 64 S. Ct. 397), Screws v. United States, supra, and in Hebert v. Louisiana ((1926) 272 U. S. 312, 316, 71 L. Ed. 270, 273, 47 S. Ct. 103), it was held that not every violation of State law constitutes a denial of due process-that the question of State law is immaterial in determining whether there has or has not been a denial of due process.

The legality of an arrest is determined under State law, and the effect of this proposed paragraph will be to make one arrest a Federal offense in one State while the same arrest would not constitute such an offense in another State. This persuasive factor was expressly referred to in the Hebert case, supra, as being one reason why the ques

11 Transcript, p. 17.

tion of violation of State law vel non was constitutionally irrelevant in evaluating due process questions.

In Yglesias v. Gulfstream Park Racing Ass'n. ((CA 5th 1953) 201 F. 2d 817, cert. den. 345 U. S. 993), it was held that a mere false and malicious arrest, whatever its legal consequences under State law, did not rise to the level of deprivation of those "fundamental rights" which alone are included within due process. See also Charlton v. City of Hialeah ((CA 5th 1951) 188 F.2d 421).

S. 906 would create a commission on civil rights, to be composed of five members to be appointed by the President with the approval of the Senate. As pointed out by Congressman Walter in the hearings on the House version of this proposal, it is contradictory for this measure to recite the need for study, evaluation, and recommendation as to remedial legislation, while contemporaneously therewith are submitted accompanying bills which go about as far as conceivably possible in enacting the legislation about which it is said further study is needed.12

In view of this, it is only reasonable to conclude that the proponents urging passage of S. 906 desire the creation of a Gestapo which will hold needless investigations, pry into the affairs of the States and their citizens, and intimidate a majority of our citizens solely to appease the politically powerful minority pressure groups, inspired by the communistic ideologies of the police state.

For example, as noted in the minority report on H. R. 627, an omnibus bill embracing this and other proposals, it was pointed out that the Commission would have a right to hold hearings in some faroff remote place and require attendance of witnesses at their own expense, as no travel or per diem expenses are provided for. Similarly, the report noted that what is section 5 of S. 906 authorizes the Commission to utilize the "services, facilities, and information of other Government agencies, as well as private research agencies", and concluded with the observation that these "private agencies" would probably be the NAACP, the American Civil Liberties Union, and other like partisan political-action groups.

Thus, the situation would be created where governmental powers would be delegated to these private groups to investigate and harass other citizens and organizations. The awful power of the state would thereby be given to a few as against the many.

No one can imagine what this Commission will cost the taxpayers, as no limitation is put upon its expenditures, but on the contrary, section 5 (b) authorizes the Commission "to make such expenditures, as in its discretion, it deems necessary and advisable." Presumably, the Commission might donate public money to the Communist Party, if it determined that such would promote the cause of racial amalgamation.

Before the Congress authorizes the Government to enter into such. an unholy partnership with these minority groups, it would do well to study some of their pronouncements.

Save only the Communist Party, with its "Southern Manifesto" of 1928, the most aggressive proponent of these civil rights measures is the NAACP, and while this self-proclaimed pious group fervently crusades against prejudice and race bigotry out of one side of its mouth, it conducts a conspiracy against the white man out of the other.

12 See transcript of House committee of April 10, 1956, p. 19.

In its national publication, The Crisis, volume 62, page 493 (October 1955) quotes are made gleefully predicting the downfall of the white race, and urging the colored people to revolt and take up arms against their white brothers. It was said specifically:

Give him a little more time and the white man will destroy himself and the pernicious world he has created. He has no solutions for the ills he has foisted upon the world. None whatever, he is empty, disillusioned, without a grain of hope. He pines for his own miserable end.

Will the white man drag the Negro down with him? I doubt it. All those who he has persecuted and enslaved, degenerated and emasculated, all of whom he has vampirized will, I believe, rise up against him on the fateful day of judgment. There will be no succor for him, not one friendly alien hand raised to avert his doom. Neither will he be mourned. Instead there will come from all corners of the earth like the gathering of a whirlwind, a cry of exultation: "White man, your day is over! Perish like the worm! And may the memory of your stay on earth be effaced!"

In its issue of November 1955 (vol. 62, p. 552-553), the magazine vehemently justifies the merciless slaughtering and raping of innocent white French inhabitants in Ouad-Zem by the colored Berber tribesmen on the ground that the Frenchmen deserved such treatment.

S. 907 is an omnibus bill which includes in one bill all the others, and adds provision for a Joint House-Senate Committee on Civil Rights. There is no reason apparent as to just why the question of civil rights requires creation of a joint committee, any more than other subjects of legislation. This bill would also add provisions outlawing segregation in interstate commerce. In view of the recent action of the ICC, it is difficult to see how this law is needed, unless the proponents, like I, believe the ICC to have exceeded its statutory

powers.

S. 3605 is the administration version of the "Civil Rights Commission", and is even more explicit in authorizing payments to private individuals and organizations. This bill is otherwise similar to S. 907, and the remarks previously made with regard thereto will apply here also.

I have tried to summarize briefly my objections to the proposed legislation. There are many others which time does not permit me to cover. Beyond this, there are undoubtedly many additional quirks and objectional features which can only be ascertained by judicial application, and particularly is this to be expected from the broad, loose language employed in these bills.

However, the one overriding reason which prompts me to appear here today is my concern for continued existence of this country as one of a national government with limited powers on one hand, and an association of sovereign states on the other which are more responsive to the will of the people in the vast majority of governmental affairs which do not require unity of action. This was the formula conceived by the founding fathers to preserve our liberties.

All of these bills come before the Congress concealed in a hyprocritical cloak of self-righteousness and pious protestation against bigotry and prejudice by those who would wave the Constitution on high whenever it suits their purpose, but who to achieve this purpose would destroy the Constitution by destroying the States. A leading constitutional scholar from the North has written that the 14th amendment itself was adopted by speeches which "aroused the passions of the people, increased their prejudices and hatred and appeal to selfish motives", and that all these appeals were clothed in terms of

"rights and justice." See Flack, Adoption of the Fourteenth Amendment, p. 209.

A study of the many and all embracing Civil Rights laws presently on the books will readily demonstrate the absence of need for the proposed legislation. The most far-reaching of these statutes today is 42 U. S. C. annotated 1985. So recently as 1951, in Collins v. Hardyman (341 U. S. C. 651, 656, 95 L. Ed. 1253, 1257, 71 S. Ct. 937), the Supreme Court criticized the unbalance wrought upon our FederalState system by this statute in the following language:

This statutory provision has long been dormant. It was introduced into the Federal statutes by the act of April 20, 1871, entitled "An act to enforce the provisions of the fourteenth 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.

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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.

The provision establishing criminal conspiracies in language indistinguishable from that used to describe civil conspiracies came to judgment in United States v. Harris (106 U. S. 629, 27 L. Ed. 290, I. S. Ct. 601). It was held unconstitutional. This decision was in harmony with that of other important decisions during that period by a Court, every member of which had been appointed by Presidents Lincoln, Grant, Hayes, Garfield, or Arthur-all indoctrinated in the cause which produced the 14th amendment, but convinced that it was not to be used to centralize power so as to upset the Federal system.

The bill now before this committee would go even further than section 1985. If these measures succeed, it will be only a matter of time before the next move will be Federal legislation touching the substantive law of tors, property, and the administration of estates.

I do not conceive it to be the proper function of this Congress or any other branch of the Federal Government to be constantly sniping at the powers and sovereignty of the States, for it is by their remaining sovereign that the liberties of all our people will be best preserved.

We must never forget the great words of Chief Justice Chase, rendered during the heat of reconstruction in the case of Texas v. White ((1869) 7 Wall. 700, 725, 19 L. Ed. 227, 237), to wit:

Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National Government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.

Senator EASTLAND. Thank you, Mr. Cook, for your timely and eloquent statement. I appreciate the efforts you have made to present your views on these legislation bills.

Mr. YOUNG. Our next witness, Mr. Chairman, is Judge Perez of Louisiana.

Senator EASTLAND. We are happy to have you with us this day, Judge Perez, and look forward to your testimony.

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