Senator ERVIN. Now I would like to ask the Senator if he is aware that we have a statute embodied in title 18, section 241 of the United States Code which provides that:

If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on the premises of another with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured they shall be fined not more than $5,000 or imprisoned not more than 10 years, or both.

And is the Senator also aware of the fact that there is another statute embodied in title 18, section 242 of the United States Code which reads as follows:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than 1 year, or both.

Does the Senator share my opinion that under those two statutes sufficient criminal punishment can be visited upon any State or local official or any person party to a conspiracy which has within its object the denial of any constitutional right belonging to any citizen? Senator SPARKMAN. I certainly agree with the Senator, and again I say that it provides the orderly system that was contemplated when our Constitution was written.

In other words, it becomes a matter of handling in the courts in such a way that the person receives due process before he is brought to the bar of justice or any punishment is imposed.

Senator ERVIN. Now I call the Senator's attention to two other statutes: title 42, section 1983 and title 42, section 1985, subsection 3 which provide that "Civil actions, either actions of law or suits in equity, can be brought either to recover damages or to prevent any anticipated denial of any right of any citizen secured by the Constitution and laws of the United States."

Does not the Senator think those two statutes provide sufficient remedy for the private redress or private prevention of public punishment of any person who is denied any right secured to him by the Constitution and laws of the United States because of race or color? Senator SPARKMAN. I think the Senator has correctly stated the

case.

Senator ERVIN. Truthfully, there is not any necessity whatever for enacting any other law for protection of all constitutional rights of all individuals under all circumstances, is there?

Senator SPARKMAN. I think the Senator is right and I repeat something I said in my statement.

Congress has established or has authorized the Attorney General to establish in the Department of Justice a Civil Rights Division and it is functioning and functioning in large part under these acts to see that they are properly carried out and it also performs another function.

The Civil Rights Division has been quite active in trying to bring races together where there is racial disturbance, trying, in many in

stances, to establish or reestablish communication and we know that in a good many instances it has been effective.

Senator ERVIN. You spoke of some of the recommendations of the Civil Rights Commission for legislation and other governmental action.

One of the recommendations was that every State officer that is every sheriff, deputy sheriff, police officer, constable, or other State or local officer engaged in the enforcement of the law-who uses unnecessary force to arrest or to detain any person shall be subject to trial in the Federal courts as a common criminal and be punished by fine or imprisonment in case it is found that in the arrest he used unnecessary force.

I will ask the Senator this question. If this statute were passed, would it not place every State and local law enforcement officer in America in this dilemma: if he underestimates the degree of force necessary to enable him to perform an arrest, the criminal might either escape or injure the officer; but if, on the contrary, he overestimates the amount of strength necessary to enable him to perform his duty and overcome forceful resistance or an attack upon himself, then he would be hailed as a common criminal in the Federal courts and prosecuted by the Federal Government which would be allied with the criminal and against the law enforcement officer of the States. Is that not true? Senator SPARK MAN. I think that is true. Certainly, there is a large element of judgment that any officer must use in the performance of his duties.

May I mention this instance that I just happened to think of as the Senator was framing his question, that you may remember that only within the last month or so there was killed, right here in Washington, a young policeman.

By the way, I believe he was a Negro policeman who had arrested someone on a bus and in taking him off and maybe in making a telephone call, he used too little force and the person who was arrested in some way got ahold of a gun and shot him dead.

Now there is a case where, undoubtedly, the arresting officer minimized in his judgment the amount of force that was required to handle that person sufficiently.

It could go either way.

Furthermore, these matters are covered by State laws and if the action is such as to trespass upon a person's right secured to him under the Constitution there is protection under the statutes that the Senator read just a few minutes ago.

Senator ERVIN. Does not the Senator think that this recommendation indicates that the Civil Rights Commission has perhaps a rather unfortunately low opinion of the character and capacity of State courts and State law enforcement officers, who are charged with enforcing State laws?

Senator SPARKMAN. I do. And I think it has the wrong attitude in assuming that so much power-I was about to say "all power". emanates from the Central Government when, as a matter of fact, there are two systems of government, a dual system of government. Senator ERVIN. Now this recommendation doesn't deal with Federal law at all, does it?

Senator SPARK MAN. Not at all.

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Senator ERVIN. It deals with the power of a law enforcement officer of a State to take steps to bring before a court a citizen of that State who has violated a law of that State within the borders of that State. Is that not true?

Senator SPARKMAN. The Senator is right, and the only way that the Federal law could come into effect at all would be as I mentioned a few minutes ago, if the person's rights guaranteed to him under the Constitution were violated.

Senator ERVIN. Now I notice also a recommendation of the Civil Rights Commission to the effect that whenever any State or city law officer commits any wrong toward any person which may involve any constitutional right, that the city which employs him or the county which employs him shall be liable in action for damages to the party alleged to have been wronged by the officer.

Does the Senator agree with me that this is a remedy which places the sins of guilt on the innocent?

Senator SPARKMAN. Yes, it brings back to my memory some of the long-drawn-out fights that we had back when the Senator and I both served in the House of Representatives in the fight against an attempt to enact antilynching laws where the State, county, city and just about every group and subdivision was to be heavily punished in the event a lynching occurred anywhere around.

The Senator will remember our argument at the time that lynching was virtually a thing of the past. I do not know how many years it has been now since there has been a lynching and it did not require the enactment of such a law.

I think there is a similarity between the two.

Senator ERVIN. I have a rather vivid recollection of having read in Blackstone's Commentaries, that at one time there was an English law holding that when a person was injured in a community, everybody in the community, guilty and innocent alike, had to make repentance. Blackstone said that when mankind became more enlightened and realized that there was something inequitable or unjust about visiting consequences of the sins of the guilty upon the innocent, the English law would be abolished.

I would like to ask the Senator from his vast experience as a private attorney before he came to Congress if the great majority of the work of the police officers in municipalities and law enforcement officers in the counties is not done in the enforcement of laws of the county or town, but rather in the enforcement of the laws of the State.

Senator SPARKMAN. I think that is a safe statement.

Senator ERVIN. So if the officer is acting as an agent for anybody, he is acting as an agent of the State by enforcing its laws, is he not? Senator SPARKMAN. I think that would be generally true with the exception of traffic officers that operate usually within the city.

Senator ERVIN. And so if we were to adopt the Commission sugges tion and make innocent citizens responsible for transgressions of law by our officers, that liability ought to be imposed on the part of the State, should it not?

Senator SPARKMAN. I just think the recommendation is wholly without logic.

I do not think it should be imposed upon any political subdivision. As a matter of fact, Mr. Chairman, I think it is generally true that law enforcement officers of whatever political organization they may

be working in, political subdivision in the State, or whatever it might be, I think it is generally true that each officer is under a bond for civil damages for any wrong done, and certainly so far as any rights that are assured to the individual under the Constitution there is protection under the statutes that the Senator earlier referred to.

Senator ERVIN. I have read the recommendations of the Commissioners very carefully and it seems to me that if they recommend that the taxpayers at the local level be held responsible for the actions of their officers, they ought to make a like recommendation with reference to a national level; if the municipality should be held responsible for the wrongs of its officer, the Federal Government ought to be made responsible for the wrongs of its officers. If we are going to have sauce for the goose, we ought to have a sauce for the gander as well.

I thank you, Senator. I could proceed for a great while with questions on specific recommendations but I will just ask the Senator if he does not think that it is a fair generalization to say that virtually every recommendation made by the Civil Rights Commission for legislation or Government operation is merely an echo or reecho of recommendations made by different organizations who adhere to the theory that people can legislate a more abundant life and, in order to do this, other people have to be robbed of basic rights.

Senator SPARKMAN. I think that is the general philosophy of it.

I do want to say this, that I have not kept up with every single recommendation that the Commission has made, but I have followed generally their recommendations each time they have come out with a report, and I think many of them show a lack of clear thinking and clear appreciation of the kind of government that we have, the three branches of Government that are coordinate, but separate, and the dual system of government that we have as between the Federal Government and the State governments.

Senator ERVIN. Senator Keating?

Senator KEATING. Senator Sparkman, it is not my expectation that I would be able in any way to change the views of yourself or our distinguished chairman, both of whose views in this entire field are quite different from mine. But I would like to get your testimony in respect to this.

I was unfortunately a little late and did not hear the first part of your testimony. But do you feel it is necessary to agree with the recommendations of the Commission in order to favor the extension of the life of the Commission?

Senator SPARKMAN. No, I would not argue that to be true at all. I have differed many times with many things that have been brought up that have been done by the departments, agencies of the Government and yet, gone right on supporting them with appropriations and legislation that was needed.

But looking at this as a whole, I do not believe it has justified its continuation and I pointed out probably before the Senator was able to get here that it was set up originally for a 2-year operation.

That was clearly the intent when it was set up in 1957. It was set up to make a study and make a report and to wind up its business. Now it has been extended 6 years, and there is the request before the committee now to extend it for 4 more years, and another request to place it on a permanent basis.

May I call attention of the Senator from New York to this also, that I pointed out that it is clearly a duplication of something that Congress has authorized and that is the Division of Civil Rights within the Department of Justice. We do not need two operating in the same field.

Senator KEATING. Well, the history of it in the past is that it has not duplicated, in my judgment, the work of the enforcement agency. This is a factfinding agency without enforcement powers.

I want to ask the Senator a question about the request in the Commission report that both the Congress and the President consider seriously whether legislation is appropriate and desirable to assure that Federal funds contributed by citizens of all States not be made available to any State that continues to refuse to abide by the Constitution and laws of the United States.

Would you consider that it was improper for the executive and the legislative branches to consider seriously whether such legislation was appropriate and desirable?

Senator SPARKMAN. Well, of course, that term "consider" has different connotations.

I remember back in the days of 1949, 1950, 1951 in the MacArthur hearings in the early part of 1951, the question was asked of high officials of the Government, particularly the Secretary of State if we had ever considered recognition of Red China.

That became a hotly debated question thereafter.

Well, of course, if "consider" just means think about, that is one thing. If "consider" means consider it within an idea, think of it with an idea that it ought to be done, that is another thing.

Naturally, anybody can think about anything he wants to and give consideration to it, but I think that the recommendation was completely uncalled for. I think it was ridiculous and certainly, the President, as I pointed out, does not have the power to do the things that they suggested and in his news conference right after that, the President said that he did not have the power. And furthermore, he did not think that the President should be given such powers. I agree with that statement.

Senator KEATING. Do you think that Federal funds contributed by citizens of all the States should be made available to a State which continues to refuse to abide by the Constitution and laws of the United States?

Senator SPARKMAN. I think the funds that are made available in the form of loans, grants, aid, assistance from the Federal Government should be administered in the manner in which Congress directs them to be.

Senator KEATING. Well, I presume that is as close as I will get to it.

Senator SPARKMAN. I do not see how you can get any closer. I think this may have been before the Senator came in. Senator KEATING. I would appreciate a direct answer, but I would not press the Senator.

Senator SPARKMAN. Well, it is up to Congress to decide those things, and I stated a while ago that Congress had never enacted a law that gave the President the power to cut off funds and it provided in a manner in which the funds should be made available and