1957 CONGRESSIONAL RECORD - SENATE 16275 nal contempt" or without defining or ments of the Constitution. To substan- formity in the application of the pro- differentiating between "criminal con- tiate this point, I refer again to Wil- posed statute-section 151-and the en- tempt" and "civil contempt." proceeds loughby on the Constitution of the tire procedure would be awkward, cum- to make the provisions of the first sen- United States, page 1727, section 1141. bersome, and impracticable. tence inapplicable to those contempts In this section Willoughby points out (Although Mr. THURMOND had not con- "committed in the presence of the court that a contempt which is not committed cluded his speech at this point, but con- or so near thereto as to interfere di- in open court does require due process of tinued for some time, in view of the cir- rectly with the administration of jus- law for the defendant. The United cumstances, the following matters, which tice" and likewise inapplicable to "mis- States Supreme Court, in an opinion by were ordered to be printed at the end behavior, misconduct, or disobedience of Chief Justice Taft, held on April 13, 1925, of his speech, are printed at this place any officer of the court in respect to the that all the guaranties of due process in the RECORD:) writs, orders or process of the court." of law are available to a person charged In other words this second sentence deals with contempt. Cooke v. United States SENATOR FROM WISCONSIN with certain "contempts" and with "mis- ((1925) 267 U. S. 517.) Thus it is quite behavior of any officers of the court" and clear that the amendment-section 151- During the delivery of Mr. THUR- excludes such "contempts" and "mis- as now drafted would subject a person to MOND's remarks, behavior of any officer of the court" criminal prosecution for a statutory of- Mr. JOHNSON of Texas. Mr. Presi- from the provisions of the Civil Rights fense so indefinitely defined or described dent, will the distinguished Senator from Act-H. R. 6127. In other words, the as not to enable him to determine South Carolina yield to me, with the un- second sentence says that if any con- whether or not he is committing that of- derstanding- tempt is committed in the presence of fense. Connally v. General Construction Mr. THURMOND. I will yield for a the court, or so near thereto as to inter- Co. ((1926) 269 U. S. 385) ; International question. fere directly with the administration of Harvester Co. v. Kentucky ((1914) 234 Mr. JOHNSON of Texas. Mr. Pres- justice, it is not dealt with in the Civil U. S. 216); Collins v. Kentucky ((1914) ident, I should like to ask the Senator Rights Act-H. R. 6127. Likewise ex- 234 U. S. 634). if he would be agreeable to yielding to cluded from coverage by the Civil Rights Second. This amendment is unconsti- me for the purpose of making a brief Act-H. R. 6127-vould be "the mis- tutional, in violation of the fifth amend- announcement, with the understanding behavior, misconduct, or disobedience of ment prohibiting double jeopardy. that the announcement appear at the any officer of the court" in respect to That provision of the amendment conclusion of his remarks, with the fur- any writ, order, or process of court issued which permits the accused to be tried a ther understanding that when he re- presumably under authority of the Civil second time by a jury for the same of- sumes after the interruption it will not Rights Act-H. R. 6127. fense following conviction in a summary be counted as a second speech, and with The last sentence of the amendment- proceeding violates the fifth amendment the further understanding that the Sen- section 151-simply tries to restate the to the United States Constitution, which ator retain the floor. proposition now appearing in section 401 declares "nor shall any person be subject Mr. THURMOND. If unanimous con- of title 18, United States Code, that a for the same offense to be twice put in sent is obtained, and there is no objec- court of the United States has power to jeopardy of life or limb." tion on the part of the majority leader punish contempts of its authority. How- In ex parte Grossman the Supreme or minority leader, I will do so. ever in restating that posposition, this Court stated that contempt is an "of- The PRESIDING OFFICER (Mr. last sentence refers to "civil contempts," fense" within the meaning of the par- JOHNSTON of South Carolina in the whereas section 401 refers to "contempt doning power of the President granted in chair). Is there objection to the re- of its-the court's-authority." Thus article II, section 2, clause 1 of the enu- quest of the Senator from Texas? The we see the last sentence of the amend- merated powers of the President. Chair hears none, and it is so ordered. ment, section 151, refers to "civil con- Clause 1 declares the President "shall Mr. JOHNSON of Texas. Mr. Presi- tempt," as distinguished from the first have power to grant reprieves and par- dent, I am pleased to announce that the sentence, which deals with "criminal dons of offenses against the United Senator-elect, Mr. WILLIAM PROXMIRE, contempt." States, except in cases of impeachment." from the State of Wisconsin, who was on Nowhere in the amendment is any defi- Chief Justice Taft in ex parte Grossman yesterday chosen by the citizens of Wis- nition given of either "criminal con- ((1925) 267 U. S. 87, 107) quoting Myers consin in a landslide vote, is present, tempt" or "civil contempt"; nor has Con- v. United States ((1924) 264 U. S. 95, ready, and prepared to take the oath of gress ever attempted to draw any such 104-105). office. distinction. The sole provision attempt- If contempt is an offense when it comes I should like to read at this time into ing to draw a distinction between crim- to the pardoning power of the President, the RECORD of the Senate a telegram sent inal and civil contempt is contained in it certainly is an offense under the fifth at 12:52 today, as follows: rule 42 (b) of the Federal Rules of Crim- amendment. Thus reading the language Hon. FELTON M. JOHNSTON, inal Procedure in the requirement that of the amendment-section 151-in pari Secretary of the United States Senate, the notice with respect to a criminal materia with the decisions in ex parte Capitol Building, Washington, D. C.: contempt shall describe it as such. The Grossman and Myers against United On the basis of unofficial returns of the Advisory Committee on Rules, appointed States, for the Congress to grant a sec- vote cast August 27, 1957, for the United States Senator Mr. WILLIAM PROXMIRE is the by the United States Supreme Court pur- ond trial following conviction, with the United States Senator-elect from Wisconsin suant to the act of June 29, 1940-Fifty- same defendant, the same charges, and for the residue of the unexpired term end- fourth United States Statutes at Large, the same evidence, would place the de- ing January 3, 1959. Official certificate of page 686-to assist in the preparation fendant in double jeopardy. election will follow upon completion of offi- of rules of pleading, in their notes The proposal-section 151-even if it cial canvass of vote cast. indicate that the requirement of notice were not in violation of the fifth amend- STEWART Q. HONECIK, written into rule 42 (b) was "intended ment, would place Congress in the posi- Attorney General, WARREN R. SMITH, to obviate the frequent confusion be- tion of gambling with the rights of our State Treasurer, tween criminal and civil contempt pro- citizens. Suppose a judge tries a man Members of the Board of State Canvassers. ceedings" pursuant to the suggestion or woman and finds the person guilty. made in McCann v. New York Stock Ex- The press reports this fact to the public Mr. President, the United Press ticker, change ((2d Cir., 1935) 80 F. 2d 211). and such cases are bound to stir the at 4:17 this afternoon, carried the fol- See Civil and Criminal Contempt in the public interest. The person so convicted lowing statement: Federal Courts, report of Los Angeles Bar is then tried again on the same evidence. MADISON, WIs.-The State board of can- Association, 17 Federal Rules Decisions Any jury is bound to be influenced. vassers today agreed to certify WILLIAM 167-182-1955. The Supreme Court it- In addition, what basis or standard of PROXMIRE'S senatorial victory and allow him distinction be- to go to the Senate before the official canvass. self has belabored the conduct is to be the determining factor The board will certify PROXMmE's election tween civil and criminal contempts. For as to whether the judge imposes the to the Senate clerk late today. He could the Court's distinction see Bessette v. W. lesser fine or sentence and lets his ver- take office Thursday. B. Conkey Co. ((1904) 194 U. S. 324,328). dict stand or imposes the greater fine Declaring a candidate elected before the A contempt statute certainly comes or punishment and moves the case along official canvass is believed to be unprece- within the due process of law require- to a jury trial. There would be no uni- dented in Wisconsin elections. HeinOnline -- 103 Cong. Rec. 16275 1957 16276 CONGRESSIONAL RECORD - SENATE August 28 Goy. Vernon W. Thomson said, "We are * By unanimous consent, the oath was then oath of office, at the same time present- not going to stand on technicalities.