This pronouncement was made by the Supreme Court of the United States in United States v. Cruikshank, 92 U.S. 542.

Do you agree with that?

Attorney General KENNEDY. I believe I do, Senator. I did not hear the whole thing. What year was that?

Do you have the year?

Senator ERVIN. No; but it was before you and I were even born. It was about 1880, I imagine.

Attorney General KENNEDY. Could I read it? It might make it easier.

Senator ERVIN. I am afraid to have you read my writing, because I don't want to take any literacy test myself.

Attorney General KENNEDY. I think I probably would accept it, Senator. It does give me a little concern—

A citizen has no rights within the protective power of Congress except such as are expressly or by necessary implication granted or secured to him by the Constitution of the United States and the power to protect all rights not so granted or secured rests exclusively with the States.

I would think I could accept that.

Senator ERVIN. I think that is a valid statement. I construe what you had to say in your statement concerning the theory that the actions of persons licensed by the State to carry on individual activities constitute State action to be in agreement with my views on this subject. Attorney General KENNEDY. I think that is right.

Senator ERVIN. I cannot find any basis to support the theory that if a State exacts a license tax from a man to pay the cost of government such exaction of such tax makes the action of the man State action. Attorney General KENNEDY. As you say, merely because of that or solely because of that, I don't think would be sufficient.

Senator ERVIN. I am sorry that my good friend, the senior Senator from Connecticut, is unable to be present at this time. He is interested in the question which I will now discuss.

I do not know any State in the Union which does not require lawyers to be licensed to practice and to pay a license tax. In my judgment, there is no validity whatever to the theory that the action of a lawyer in private practice or the action of any other person in a private business becomes State action under the 14th amendment merely because the State compels him to pay a license tax, which is used to assist the State in supporting its public functions. This theory has been expressly repudiated by several Federal court decisions.

One of these Federal cases is Grubbs v. Slater, 144 F. Supp. 544. The plaintiff in that case brought a suit for damages for the alleged violation of his civil rights on the theory that the actions of two attorneys, Tom Mapother and Elmer Morgan, constituted State action. Within the purview of the civil rights statutes and the 14th amend

ment.

In rejecting this argument, and dismissing the case, the U.S. District Court for the Western District of Kentucky had this to say:

One of the questions raised by the motion to dismiss is whether the attorneys Mapother and Morgan are subject to liability under the civil rights statutes. In the case of Botonne v. Lindsley, 10 Cir. 170 F. (2) 705, 706, the Court said:

We seriously doubt whether lawyers who invoke the jurisdiction of the State court for the purpose of prosecuting a claim against a private individual, are

State functionaries acting under color of law within the meaning of section 43 (42 U.S.C.A. 1983).

See also annotation 13 A.L.R. 2(d) 465 to the effect that

It is well settled that allegations that private persons violated plaintiff's rights contrary to the due process guaranty of either the 5th or 14th amendment do not state a substantial or meritorious Federal question sufficient to vest Federal jurisdiction, because as a matter of substantive constitutional law, the two due process clauses afford protection only against governmental activity through some governmental agency and do not afford it against acts committed by private persons (citing Givens v. Moll, 5 Cir. 177 F.2d, 765),

In the latter case, the court characterized as fantastic that acts of a lawyer are acts of a State

so that suits against him for wrongs he has allegedly done present Federal questions under the due process clause giving rise to Federal jurisdiction. It is, therefore, concluded that no cause of action is stated against the defendants, Tom Mapother and Elmer Morgan.

The same question was raised in the case of Swift v. The Fourth National Bank of Columbus, Georgia, 205 Fed. Supp., 563, and the Court in that case rejected the contention, saying:

The 14th amendment cannot be the basis of an action complaining of the acts of private individuals or business establishments. *** Section 1983 preserves constitutional rights from infringement by persons who act under Federal or State authority. It does not give the Federal courts jurisdiction of controversies between private citizens, regardless of the nature of the alleged wrong or the extent of the claim of sustained injury. * * * But it cannot be seriously contended that the lawyers who participated in the trial of these matters nor the judges who presided over the proceedings in the State court are State functionaries acting under color of State law within the meaning of the civil rights acts.

I call attention to another case, Givens v. Moll, 177 F. 2d 765, which was decided by the U.S. Court of Appeals for the Fifth Circuit. In this case it was contended by the plaintiff that

some of the defendants are lawyers and, therefore, officers of the State courts, and as such they must be regarded as officers and instrumentalities of the State and their actions in deprivation of plaintiff's property as State action.

The court rejected this contention, saying that such contention was "fantastic."

The CHAIRMAN. Senator Ervin, we have to recess at 12 o'clock. I understand there is objection to our meeting.

Senator ERVIN. Mr. Attorney General, I wish to express the hope that we will be able to proceed a little more rapidly next time.

Attorney General KENNEDY. Mr. Chairman, could I find out a little what the schedule might be so I can make my own plans?

The CHAIRMAN. Yes; I was going to discuss it with you. It will be tomorrow if you will be available.

Attorney General KENNEDY. What about Friday?

The CHAIRMAN. I will have to discuss it with committee members. I want to have a quorum of the members at all times. Usually it is hard on Friday. If we don't meet on Friday, we will meet on Tuesday. Attorney General KENNEDY. I will make myself available at any time, Senator.

The CHAIRMAN. We are recessed until 10:30 tomorrow morning. (Whereupon, at 12:05 p.m., the committees recessed, to reconvene Thursday, July 25, 1963, at 10:30a.m.)

CIVIL RIGHTS-THE PRESIDENT'S PROGRAM, 1963

THURSDAY, JULY 25, 1963

U.S. SENATE,

COMMITTEE ON THE JUDICIARY,

Washington, D.C.

The committee met, pursuant to recess, at 10:45 a.m., in room G-308, New Senate Office Building, Senator James O. Eastland (chairman) presiding.

Present: Senators Eastland (presiding), Johnston, Ervin, Dodd, Hart, Long of Missouri, Kennedy, Bayh, Dirksen, and Keating.

Also present: Joseph A. Davis, chief clerk; L. P. B. Lipscomb, and Robert Young, professional staff members.

The CHAIRMAN. The committee will come to order.

Senator ERVIN. Mr. Attorney General, I shall try to proceed with all deliberate speed in this examination.

STATEMENT OF HON. ROBERT F. KENNEDY, ATTORNEY GENERAL OF THE UNITED STATES, ACCOMPANIED BY BURKE MARSHALL, ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION

Attorney General KENNEDY. That concerns me a little bit, Senator. Senator ERVIN. I want to go back to the laws we already have, and particularly with reference to one of the statutes which is misdemeanor. Before I do, I would like to say that I doubt very seriously that we can determine exactly what Mississippi juries will do by what happened in the aftermath of the James Meredith case. That episode distressed the people of Mississippi; I know it distresed you and me and many other people.

Attorney General KENNEDY. Senator, I gave that as one example. There are a number of others. Just being realistic about it, there is a difficulty in this area.

Senator ERVIN. Of course, when the Department of Justice makes a criminal charge, it has to prove the charge beyond a reasonable doubt by witnesses who are subject to cross examination and contradiction.

Attorney General KENNEDY. I understand that, Senator. I can look at each State, however, and look at the situation and weigh the evidence and gather whether we have strong cases or weak cases.

Our experience over the period of the last 22 years, has been that we have a very difficult time winning these kinds of cases in some of the States.

Senator ERVIN. For your consolation, I will admit I used to lose a lot of lawsuits myself when I practiced law. There is an old saying that no wretch e'er felt the halter draw with good opinion of the law. The same observation applies to the wretch's lawyer.

Under title 18, section 1 of the U.S. Code, any crime punishable by not in excess of 1 year's imprisonment is a misdemeanor. Under this statute, the crime of willfully depriving any qualified citizen of the right to vote created by section 242 of title 18 of the U.S. Code is a misdemeanor.

Under rule 7(a) of the Rules of Federal Procedure for the U.S. District Courts, a misdemeanor may be prosecuted by information rather than by indictment.

In prosecutions under 18 U.S.C. 242, there would be no necessity for impaneling a grand jury. So that would be one obstacle that the Department of Justice would not have to encounter in prosecutions for willfully depriving a qualified citizen of the rght to vote.

Attorney General KENNEDY. We have a rather major one in front of us, however, sir.

Senator ERVIN. Under title 28, section 1864 of the U.S. Code, the clerk of the U.S. court and the jury commissioner appointed by the judge pass on the eligibility of all persons to serve in Federal courts as grand or petty jurors. And the only names which go to the jury box are those selected by these Federal officials, namely, the clerk of the court and the jury commissioner named by the judge. Is that true?

Attorney General KENNEDY. That is right, Senator.

Senator ERVIN. Section 1865 of title 28 of the U.S. Code also provides that jurors in Federal courts can be selected from such parts of the district as the district judge may direct so that those most capable of trying cases in an impartial manner will be called for service, and that to this end the judge may order that separate jury boxes may be maintained at all places where the district court is held and that the district judge may appoint additional jury commissioners to accomplish this purpose.

Is it not true that under these statutes, the eligibility of all persons who are called to serve upon either grand or petty juries in Federal district courts is determined not by Federal officials and not by State officials?

Attorney General KENNEDY. Yes. Senator, could I answer that a little bit more fully?

Senator ERVIN. Yes.

Attorney General KENNEDY. I am not questioning the integrity, the impartiality, the veracity of the jurors in that area of the United States. I just think that over a period of time, and I have seen it particularly over the period since I have been Attorney General, that Mr. Khrushchev might be dangerous, but certainly the second greatest danger to the people of Mississippi-according to what they are told again and again, day after day, is the Central Government, the Federal Government in Washington, and President Kennedy.

If it was a Republican, they would be saying the same thing. But day after day, hour after hour, people are told that the greatest danger to their individual liberty is the Central Government, the Federal Government and what the Federal Government is attempting to do in the State of Mississippi.

I can tell from the letters I receive. I have received letters from high school students. They have the most distorted idea and viewpoint of what is going on here in the city of Washington and the Federal Government.

I think it is very difficult under those circumstances. But assuming that is not true, we still need this legislation, Senator. Even assuming we could move in the criminal field, the legislation we have recommended is still necessary in this voting area. I outlined yesterday what this legislation actually does. Even with the three criminal statutes that are on the books at the present time, and with the Civil Rights Acts of 1957 and 1960, we still need this legislation. We need the legislation to expedite voting cases. We need this legislation to fill in gaps that exist at the present time in the legislation that is already on the books. The five laws you have gone through are on the books. We need still more laws, Senator.

Senator ERVIN. All of us who hold public office get a certain amount of criticism. I get some myself. According to my friend, Francis Garrou, who operated a cotton mill in the town of Valdese in my home county, the criticism a public official receives proves he is qualified for his job. On one occasion the election officials of the town of Valdese printed Francis Garrou's name on the town ballot as candidate for mayor without his consent. This action irritated Francis to a very high degree. He expressed his anger in a most emphatic manner to a cotton broker who called upon him to sell some cotton a few days before the election stating that he would not qualify if he should be elected. Several weeks after the election the cotton broker returned to the mill. Recalling what Francis had said in the course of his other visit, the cotton broker made inquiry of Franics concerning the outcome of the Valdese town election. Francis replied, "Those fools went ahead and elected me." The cotton broker thereupon put this question to Francis: “Did you qualify as mayor?" Francis replied, "I reckon I am qualified. I have been sworn in and cussed out and if that does not qualify a man for public office in America, I don't know what does."

Alabama is divided into three judicial districts under title 28, section 81, of the United States Code.

Georgia is divided into three Federal judicial districts under title 28, section 90, of the United States Code.

Louisiana is divided into two Federal judicial districts under title 28, section 98, of the United States Code.

And Mississippi is divided into two Federal judicial districts under title 28, section 104, of the United States Code.

Now, aren't each of these districts rather large?

Attorney General KENNEDY. Yes; I believe they are.

Senator ERVIN. And Federal courts are held in only a few places? Attorney General KENNEDY. I believe that is true.

Senator ERVIN. Most people tried in Federal courts for Federal offenses are tried in courts which are usually substantially removed in point of distance from the places where they reside and where the offenses are alleged to have been committed?

Attorney General KENNEDY. I believe that is right.

Senator ERVIN. And they are tried by jurors who are selected by Federal officials, and who rarely know the accused.

Don't you think that you at least ought to try one criminal prosecution in one of these four States and find out exactly what a jury will do before reaching the very bleak and pessimistic conclusion that it would be impossible to get any State election official convicted no matter how strong the case against him might be?

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