(dissenting).
The extremely narrow construction which the majority gives to the removal statute comports neither with its historical context, nor its present language, nor with the spirit of those decisions of the Supreme Court which have given new breadth and meaning to the constitutional guaranty of equal rights to all our citizens, nor with the intent and purposes of the 1964 Civil Rights Act.1
*773We would hold these cases removable under paragraph (1) of 28 U.S.C.A. § 1443 if the petitioners can satisfy the District Court of the truth of their allegations: that (a) they are unable to enforce their equal racial civil rights in the state court (discussed in Part I of this opinion), or (b) they have been denied these rights by state officials prior to trial (discussed in Part III).
I. REMOVAL UNDER SECTION 1443(1): INABILITY OF CIVIL RIGHTS DEMONSTRATORS TO ENFORCE RIGHTS AT TRIAL
The petition recites that the injunction and the ordinances under which appellants were arrested, jailed and prosecuted are vague, indefinite and unconstitutional both facially and as applied. It also alleges that the arrests, even without the trials, were preventing the exercise of First and Fourteenth Amendment rights by the Negro community. Finally, it claims that the wholesale arrests and trials were part of a conspiracy of the white power structure of Danville to enforce a policy of racial segregation and discrimination. The majority in its original opinion2 recognized that the petitioners alleged that they were seeking to exercise their First and Fourteenth Amendment rights in order to free themselves from official discrimination; that among other objectives they were seeking further desegregation of the public schools, theatres, and restaurants of Dan-ville, the employment of Negroes by the city, and their representation on boards and commissions. The opinion conceded that “[i]f Danville discriminated against them in employment, of course, Fourteenth Amendment rights would be involved * *
The evidence taken in the District Court on the city’s motion to remand— however conflicting on the question of which side used violence — leaves no doubt that the arrests grew out of demonstrations in which the Negro minority sought to protest what they believed to be a denial of their equal civil rights. It is further alleged, and must be taken as true for present purposes, that the arrests and threatened prosecutions were motivated by a desire to intimidate the entire Negro community of Danville; the newspaper editorials at the time voiced the hope that the Negroes would be “suppressed” and “put down.” The sweeping injunction and complementary ordinance, put into effect after the first demonstrations, were allegedly applied to this end.
After their removal petitions had been filed in the federal district court, two of the present petitioners were tried in the Corporation Court of Danville, fined, and sentenced to 45 to 90 days for their participation in the demonstrations. The conduct of these two trials affords a striking illustration of the treatment to be expected by these petitioners in the state courts. Policemen were stationed at every corner of the room; lawyers were searched on entering and leaving the courtroom; and petitioners were required to appear in court from day to day for roll call, although the prosecutor could have had no expectation of trying more than a few of them on any one day. Thus any organized protests were effectively silenced and the defendants’ ability to earn a living impaired. Then, all the cases were transferred to various courts throughout the state, some as far as 250 miles away.
The assumption that these Negroes’ rights could be vindicated in the state courts was- dramatically undermined by a ruling that flatly barred constitutional defenses to the charges against the demonstrators. The presiding judge announced from the bench, prior to the taking of any evidence, that he would not permit any such defense to be raised. *774By stripping appellants of any opportunity to show in the record that their conduct was protected from state interference, this prohibition shows a clear inability to enforce their rights in the local tribunals.
These allegations clearly bring the petitioners within the first paragraph of 28 U.S.C.A. § 1443. We agree with the rationale of our brethren in the Fifth Circuit in Rachel v. State of Georgia, 345 F.2d 336 (5th Cir.), cert. granted, 382 U.S. 808, 86 S.Ct. 39, 15 L.Ed.2d 58 (Oct. 11, 1965), and Peacock v. City of Greenwood, 347 F.2d 679 (5th Cir. 1965). See Note, 51 Va.L.Rev. 950, 958-60, 971-72 (1965). In Rachel removal was held necessary in order to protect against discriminatory misuse of a facially constitutional statute to deny the petitioners their equal rights specifically derived from the 1964 Civil Rights Act.3 In Peacock this principle was applied to permit removal where a facially valid statute was assertedly used to deny the petitioners rights to equal protection specified in the Fourteenth Amendment.4
As the Fifth Circuit correctly points out, the pre-trial application of state statutes to suppress demonstrators’ equal civil rights distinguishes these cases from Rives v. Com. of Virginia, 100 U.S. 313, 25 L.Ed. 667 (1880) and Com. of Kentucky v. Powers, 201 U.S. 1, 26 S.Ct. 387, 50 L.Ed. 633 (1906), where the alleged inability to enforce rights could not be shown until the trial itself. (See Part IV for fuller discussion of this distinction.) Indeed, the experience of these petitioners, some of whom have already been told that federal constitutional defenses could not be raised, presents even more compelling grounds for removal than in Peacock.
We turn now to an analysis of the principles underlying the removal statute, and the reasoning of the majority opinion.
II. SCOPE OF PROTECTED RIGHTS
(a) The Civil Rights Act of 1866
Our brethren argue that the rights to be protected by removal were “limited” to those specified in section 1 of the 1866 Civil Rights Act, as contrasted to those guaranteed by the later enactment of the Fourteenth Amendment, and assume without further analysis that the rights asserted by these petitioners were not encompassed within section l.5 However, the evidence is overwhelming that from the time Congress took the initial step in 1866, it envisaged a broad understanding of the protections section 1 afforded the Negro. In addition to the right to make and enforce contracts, sue, give evidence, etc., the statute gave to all persons
“the same right [to] * * * full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, * * * ”
and further provided that such persons
“shall be subject to like punishment, pains and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.” Act of April 9, 1866, ch. 31, § 1, 14 Stat. 27.
Both supporters and opponents of the measure understood that the civil rights *775granted in section 1 were to be given the broadest possible scope,6 and it was only to dispel any doubts concerning the authority of Congress to grant such sweeping rights to the Negro 7 that the Fourteenth Amendment was proposed and submitted to the states by the same Congress that enacted section 1 of the Civil Rights Act.8 The enactment of the Equal Protection Clause, in language closely paralleling section 1 of the 1866 statute,9 legitimated beyond question Congress’ attempt to protect the type of rights granted in the statute, and there is no reason to think that the rights contemplated by section 1 are of less breadth than those contemplated by the Equal Protection Clause.10 Contemporary leg*776islators11 and the Supreme Court12 have consistently read the two provisions together, and the Courts of Appeals have all assumed that a deprivation of equal protection rights would support removal.13
Here the Negroes assert that the rights they were attempting to secure by means of the aborted demonstrations were their “equal civil rights” — rights to desegregated schools, libraries, etc. They further allege that the arrests, threatened arrests, and pending prosecutions were not only part of the systematic suppression of these rights by the local government and community, but were also, in themselves, a deprivation on racial grounds of equal protection of the law. If substantiated, these allegations would clearly establish that petitioners were denied the same right to “equal benefit of all laws and proceedings for the security of person * * * as is enjoyed by white citizens.”14 Such a showing would entitle them to remove under the plain words of the original statute.
(b) Subsequent History
The majority traces the subsequent history of the removal provision in support of its narrow view of the class of rights protected, but we have already shown that from the beginning Congress took a broad view of section 1. Thus, while it is true that the 1870 reenactment of section 315 did not specifically add “constitutional” rights to the class of protected rights, this re-enactment was merely by reference, and there is no indication that Congress meant in any way to limit the scope of the 1866 coverage. Similarly, use of the phrase “rights * * * secured by the Constitution and laws” in the 1871 Civil Rights Act,16 without revision of the re*777moval provisions to include such expanded coverage, does not affect the broad meaning to be given the “equal civil rights” in the 1866 Act. The 1866 statute covered only egalitarian civil rights, while the 1871 statute provided a civil remedy encompassing the entire range of constitutional guarantees, egalitarian and otherwise. But insofar as the later statute secured equal protection rights, the two statutes protect the same class of rights. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).17
Finally, the majority suggests that use of the generic phrase “law[s] providing for equal civil rights” in the 1875 recodification meant only that future “statutory” rights could be included among those rights the violation of which would be grounds for removal.18 But the phrase is not so limited. It is more reasonable to say that the failure in 1875 either to refer to the specific recodi-fications of section 119 or to use the term. “statutes providing for equal civil rights” evidences the revisor’s understanding of the broad view taken by the 1866 Congress of the rights protected by removal. This does not impart a new meaning to the statute; it simply recognizes the full scope of the original provision.20
*778III. REMOVAL UNDER SECTION 1443(1): DENIAL OP DEMONSTRATORS’ EQUAL CIVIL RIGHTS BY STATE OFFICIALS PRIOR TO TRIAL
The majority suggests that in 1866 Congress was primarily concerned with post-judgment removal, and that its excision in 1875 is responsible for the present “inutility” of the statute. However, a careful reading of the entire 1866 Act makes plain that removal was contemplated both for an inability to enforce rights at trial, as alleged here and discussed in Part I, supra; and also where state officials have denied the equal civil rights of Negroes before their trials. Section 2 of the original statute imposed criminal penalties against “any person” who, acting under color of authority of any state law, ordinance or custom, deprived another person of any right secured by section 1. Section 3 further provided that anyone who had been denied such a right could, at any time after a prosecution was commenced in the state courts, remove the cause to the federal court for trial. Thus, Congress anticipated pre-trial removal whenever a petitioner could show that he had been denied his equal civil rights by the actions of any state official proceeding under color of law. This portion of our opinion examines more closely the affinity between the criminal provisions of section 2 and the removal provisions of section 3, particularly in clarification of the debates over the bill, (a) The Present Statute
Section 1443(1) provides that, after a criminal prosecution has been commenced in a state court, it may be removed if the defendant is
“any person who is denied or cannot enforce in the courts of such state a right under any law providing for the equal civil rights of citizens of the United States. * * * ” 28 U.S.C.A. § 1443(1) (1958).
As drafted, this provision is subject to two significantly different interpretations, depending upon whether the phrase “is denied” contemplates a denial of rights at any time, or only denials which occur “in the courts of such State.” The clause may be paraphrased in either of the following ways:
Removal is permissible by:
(i) any person who is denied [,] or cannot enforce [,] in the courts of such State a right under any law * * *
or
(ii) any person who is denied [,] or cannot enforce in the courts of such State [,] a right under any law * * *.
Interpretation (i) limits removal to something that occurs or may occur only at the trial itself, while interpretation (ii) contemplates removal at any time after commencement of a prosecution, either where the affected person “is denied” a right (before or during the trial), or where he “cannot enforce [the right] in the courts of such State.”21
As a matter of original statutory interpretation, alternative (i) renders “is *779denied” and “cannot enforce” tautological, for the inability to enforce a right at trial is precisely what constitutes its denial. On the other hand, alternative (ii) gives substance to both phrases: removal is appropriate whenever a protected right has been denied before the trial, and where it cannot be enforced at the trial itself. Moreover, the overall structure of the original statute and its legislative history plainly contemplated removal in both situations embraced by interpretation (ii).
(b) The Original Statute
Congress anticipated heavy resistance to the exercise of the rights granted the freedmen, not only from statutes which on their face discriminate against the Negro,22 but also from state officials acting under cover of facially valid state laws,23 and the 1866 Civil Rights Act clearly reflected this latter concern. Fol - lowing the broad grant of equal rights in section 1, section 2 imposed criminal penalties against “any person” who, acting under “color24 of authority of any *780law, statute, ordinance, regulation, or custom,” deprived a person of the rights secured by section l.25 Section 2 thus applied in terms to any state official;26 and the deprivation of rights constituting an element of the section 2 offense could arise both before and during the trial.27
A criminal sanction having been provided in section 2 against the state official who deprived the Negro of his rights, section 3 of the statute established the judicial machinery for its enforcement. At the same time it opened a federal forum in which the person affected could assert the rights denied him. First, the district courts were given exclusive jurisdiction over the trials of state officials charged under section- 2.28 Second, those denied their rights were permitted to file original suits for their enforcement in the federal courts.29 Third, in the language which with minor changes is now section 1443(1), Congress provided for the situation where rights had been, or would be, denied, but *781prosecutions had already been instituted in the state courts:
“[I]f any suit or prosecution, civil or criminal, has been or shall be commenced in any State court, against any such person * * * such defendant is to have the right to remove such cause for trial to the proper district or circuit court * * Act of April 9, 1866, ch. 31, § 3, 14 Stat. 27.
The phrase “any such person” refers back to the “persons affected” in the second part of section 3 — -those who could have brought an original action to enforce the rights denied them; and this “denial” in turn refers to a denial by some state officer, either a judge or some other state official, who had acted “under color of authority of a state law, statute, ordinance, regulation or custom.”
The denial of rights, to support removal after commencement of proceedings, was not limited to denials at the trial itself. Congress had two purposes in mind. It not only penalized the state officials who deprived a man of his rights; it sought at the same time to protect such affected person by giving him a federal forum for the trial of the matter in which those rights were involved.30 In order to remove under section 3 of the Act, it was necessary only to show the deprivation of some “equal civil rights,” protected by section 1 of the Act, by any person acting under color of state law.31
This interrelation between sections 2 and 3 of the original statute bears emphasis. Congress 32 and the President33 both understood that the conditions for section 3 jurisdiction, including removal, were the same as those which could subject “any person acting under color of [state] laws, statutes, ordinances or customs” to liability under section 2. If a Negro’s rights were denied by the actions of such state officer, the aggrieved party was permitted to have vindication in the federal court; either by filing an original claim or, if a prosecution had already been commenced against him, by removing the case to the federal forum.
When Congress authorized removal of causes “affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the state or locality where they may be any of the rights secured to them by the first section of this act,” the use of the disjunctive “or” between “are denied” and “cannot enforce” focused on two separate stages at which rights might be affected: before trial, when the rights were denied; and at the trial, where those rights could not be enforced. Thus, the statute clearly covers the allegations in these petitions that officials acting under color of authority of state statutes, ordinances and injunctions have suppressed appellants’ equal civil rights by mass arrests and threatened prosecutions. If this be shown at their hearing, the cases are removable.
*782(c) The Johnson-Trumbull Debate
In his message accompanying the veto of the 1866 Civil Rights Act, President Johnson expressed concern that the jurisdictional provisions of section 3 would divest the state courts “not only of jurisdiction of the particular case where a party is discriminated against, but of all cases affecting him or which might affect him.” 34 It was in reply to this contention that Senator Trumbull employed the language quoted in part by the majority in support of its restricted view of pre-trial removal.35 He first pointed out *783that a state official could not be liable under section 2 (present 18 U.S.C. § 242) unless he had actually committed some act in deprivation of a person’s equal civil rights. Conversely, the federal jurisdiction could attach only after the statute or the custom was actually applied to the complaining party, through the action of some state official. Since President Johnson had expressed concern about the bill’s effect on the state judiciary, Senator Trumbull illustrated his point with the example of the unconstitutional state statute which, until applied by a judge to deny enforcement of rights, could not be said to have “affected” the defendant. Similarly, the mere existence of a local custom of discrimination would not support federal jurisdiction until it was applied against the party.36
Of course, since the main point under discussion was the possible criminal liability of a state judge arising from the application of state law, the Senator’s statement that there would be no ground for removal until the statute was tested referred only to the in-court application of such a statute by the judge.37 The Senator’s comment, quoted by our brethren, is not inconsistent with the pattern of the statute as a whole, for until the judge applied a state statute he could not bring into operation either section 2 or section 3. The Senator did not say, as the majority would infer, that these sections could not be brought into play by the action of other officials, such as sheriffs and policemen, who might deny equal civil rights prior to the court proceedings.38
IV. THE RIVES-POWERS DOCTRINE
We may agree with the majority that the Supreme Court’s indulgence of the presumption that a facially unconstitutional state statute will be applied at the trial was a liberal construction of the 1866 Act, but it does not follow that this *784is the only situation in which removal was contemplated. In all the cases denying removal in the late 19th Century, the complaint alleged some defect in the trial proceeding itself, arising from the anticipated ■ application of a statute.39 Until the petitioner was actually tried, therefore, he could not be said to have been “affected” by the illegal actions of “any person acting under color of any law, statute, ordinance, regulation or custom.” 40
These cases clearly have no application where removal is sought on assertions of a denial of equal civil rights relating not to some future stage of the proceedings, but to the very arrests and prosecutions which give rise to those proceedings. In our concern with the fate of the 105 defendants in the pending prosecutions, we note the intimidating effect of wholesale arrests and threatened arrests and prosecutions on the good faith efforts of all the demonstrators to secure equal civil rights for the Negro community of Danville. This feature sets the case apart from Rives and Powers, heavily relied on by the majority. To borrow a phrase from the later case of Douglas v. City of Jeanette, 819 U.S. 157, 164, 63 S.Ct. 877, 87 L.Ed. 1324 (1943), Powers was “[not] threatened with any injury other than that incidental to every criminal proceeding brought lawfully and in good faith.” Powers presented no problem of the protection of civil rights against erosion by the very pendency of the prosecution. The answer given Powers, namely, that ultimately his rights might be fully vindicated in the Supreme Court of the United States, is no answer to these petitioners and the Negro community of Danville. The suppression of their freedom of speech and their right *785of protest in the endeavor to obtain equality of treatment is irremediable.41
In Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), a statute was attacked as void on its face and also under 42 Ú.S.C. § 1983 as it was being applied to discourage constitutionally protected activities. Answering the contention that the state court should first pass on these claims, the Court emphasized :
“But the allegations in this complaint depict a situation in which defense of the State’s criminal prosecution will not assure adequate vindication of constitutional rights. They suggest that a substantial loss or impairment of freedoms of expression will occur if appellants must await the state court’s disposition an ultimate review in this Court of any adverse determination. These allegations, if true, clearly show irreparable injury.
“A criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of First Amendment freedoms. See, e. g., Smith v. People of State of California, 361 U.S. 147 [80 S.Ct. 215, 4 L.Ed.2d 205] [1959]. When the statutes also have an overbroad sweep, as is here alleged, the hazard of loss or substantial impairment of those precious rights may be critical. For in such cases, the statutes lend themselves too readily to denial of those rights. The assumption, .that defense of a criminal prosecution will generally assure ample vindication of constitutional rights is unfounded in such cases. See Baggett v. Bullitt, supra, 377 U.S. [360], at 379 [84 S.Ct. 1316, 12 L.Ed.2d 377].” Id. 380 U.S. at 485-486, 85 S.Ct. at 1120-1121.
Moreover, Dombrowski sanctioned an injunction, the effect of which was to terminate all prosecutions in the state court — there could be none in the federal court — while here removal would merely substitute a féderal forum for the trial of the criminal prosecutions.42
Prior to Dombrowski the use of federal injunctions to stay state court proceedings was severely inhibited by the abstention doctrine.43 The parallel is obvious between that doctrine and the Rives-Powers insistence that federal constitutional rights be first litigated in state courts. Both restrictions rest on the assumption that federal constitutional rights will be vindicated by the states, or if not, then the Supreme Court will be in a position eventually to give full effect to those rights. In carving out an exception to the strict application of the ab~ sention doctrine, Dombrowski recognizes *786a set of circumstances in which the assumption underlying both abstention and Rives-Powers is without validity, as where “[t]he chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure.” 380 U.S. at 487, 85 S.Ct. at 1121. Cf. United States v. Woods, 295 F.2d 772, 781 n. 9 (5th Cir. 1961). Equally without validity is the underlying assumption in the present removal cases, for “ ‘[t]he threat of sanctions may deter [the effective enforcement of rights] almost as potently as the actual application of sanctions. * * * ’ NAACP v. Button, 371 U.S. 415, 433 [83 S.Ct. 328, 9 L.Ed.2d 405].” Quoted at 380 U.S. 479, 486, 85 S.Ct. 1116, 1121.44
It was upon this principle that our court in Jordan v. Hutcheson, 323 F.2d 597 (4th Cir. 1963), authorized an injunction against a Virginia legislative committee which allegedly used its powers to deny Negro attorneys their constitutional rights.
In none of the lower court cases cited by the majority in support of its restrictive reading of section 1443(1) was removal sought in order to avoid the destruction of constitutional rights resulting from the actual arrests, threatened arrests, and pending prosecutions. See, e. g., Steele v. Superior Court of California, 164 F.2d 781 (9th Cir. 1948) (complaint that alleged illegally-seized evidence would be introduced against petitioner at his trial); Hull v. Jackson County Circuit Court, 138 F.2d 820 (6th Cir. 1943) (petitioner’s claim that removal automatically ousted state court of jurisdiction rejected under pre-1948 provisions). And People of State of New York v. Galamison, 342 F.2d 255, 271 (2d Cir. 1965) (dictum), while noting the restrictive Rives-Powers interpretations of section 1443(1), acknowledged the congressional expectation that those interpretations would be re-examined by the courts.
The majority notes the Fifth Circuit’s recognition of the efficacy of section 1443 (1) in civil rights eases, but attempts to distinguish only Rachel v. State of Georgia, supra, and Cox v. State of Louisiana, 348 F.2d 750 (5th Cir. 1965). Rachel is distinguished on the ground that it involved sit-ins — conduct which the Supreme Court had declared protected under the Civil Rights Act of 1964; Cox on the ground that the defendant was being prosecuted for conduct which the Supreme Court had already declared to be no proper basis for prosecution. Notably, however, the majority does not undertake to distinguish Peacock v. City of Greenwood, 347 F.2d 679 (5th Cir. 1965), which on its facts precisely parallels the present case. There the Fifth Circuit applied section 1443(1) despite the fact that the conduct was alleged to be protected only under the Equal Protection Clause, not by any specific statute or Supreme Court decision. In so doing, that circuit, speaking through Judge Griffin Bell, who had also sat in Rachel, reaffirmed the broad interpretation of section 1443(1) and rejected the narrow construction applied by the majority here.
V. “VERTICAL UNENFORCE-ABILITY”
Under section 1443(1) the denial of, or inability to enforce protected rights must appear in advance of the trial, but our colleagues would require these petitioners to show that they would labor under a similar inability in the state appellate courts.45 True, the present section 1443 (1) refers to unenforceability in “the courts of the state,” but it is clear from the history of the statute that the 1866 Congress did not mean to require a showing of “inability to enforce” in all the *787courts of the state. The original provision, section 3 of the 1866 Act, allowed removal to persons “who are denied or cannot enforce in the courts or judicial tribunals of the State or locality where they may be any of the rights secured to them by the first section of this act.” (Emphasis added.) If the 1875 statute retained this language and eliminated post-judgment removal intentionally it must have envisioned other causes for removal than facially unconstitutional state statutes.
We think the majority’s construction ignores the whole thrust of the legislation, which was to protect the freedman from the denial of his rights by the use of state power — whether statutory or administrative. The language of the 1866 Act permitted removal “at the time of entering his appearance in such court * * * or * * * after final judgment,” and in the debates preceding passage of the 1866 Act, the concern of Congress was directed not so much to state statutes unconstitutional on their face, as to the denial of equal protection of the law within local communities.46 Moreover, since removal under section 1443(1) is predicated on a showing of discriminatory application of facially constitutional statutes,47 the delay incident to appeals through the state appellate process would effectively destroy the original purpose of the statute. It has been well said, “litigation is not a meaningful avenue to the enjoyment of federal rights,” 48 and common observation confirms the difficulties inherent in the effort to correct through the state appellate process abuses occurring at the trial level.49
Perhaps the most effective answer to the majority’s requirement of a showing of “vertical” unfairness lies in the practicalities of framing a record. Assuming the disposition of state appellate courts to enforce federal constitutional rights in civil rights cases, still the determination of the facts on which cases will ultimately turn is within the ambit of the trial court. Abuses occurring at that level are largely uncorrectible on appeal. Evidence may be excluded as irrelevant; cross-examination may be cut off; and witnesses may be intimidated in a coercive atmosphere. In such circumstances direct review of the state trial courts is no guarantee that constitutional rights will be effectively protected.50 This very case provides an extreme example: the presiding judge who refused to entertain federal constitutional questions would hardly facilitate the preparation of a suitable record for the review of federal claims (see Part I).
VI. NATURE OF THE REMOVAL HEARING
It is suggested by the majority that the hearing on removability would be equivalent to a hearing on the merits, and that this is not the sort of inquiry which should be indulged as an incident of removal, since the cause for the removal must appear in advance of the trial. The short answer is that since Congress has authorized removal on a pre-trial showing of a denial of, or inability to enforce, *788equal civil rights, under color of state law, it is immaterial that such inquiry may involve some of the same questions that will arise in the trial of the merits. Inescapably the District Court must consider the entire atmosphere and consequences of the arrests and pending prosecutions.
Moreover, a determination that these cases are properly subject to removal does not absolve any defendant who has violated the law. The District Court must still consider each case on its merits to determine whether the individual conduct of any of the demonstrators exceeded proper bounds. The preliminary decision on removability merely determines the forum of the trial. This is precisely the congressional design — to afford a fair trial in the federal courts if it is shown that the defendants have been denied their equal civil rights by the actions of state officials under color of local laws, or that these rights cannot be enforced in the state courts. These petitions show on their face that both conditions are satisfied.
VII. THE NATIONAL CONCERN TODAY
Completely ignored in the majority opinion are the broader considerations unfolded by recent events and expounded in the latest decisions of the Supreme Court. In the full century since the Civil War, Congress has enacted ten civil rights statutes, three of them within the past ten years.51 The national purpose, as declared by Congress and the Court, has been made manifest. It is to make freedom a reality for the Negro, to secure him against the destruction of his most precious constitutional rights, and generally to permit him to enjoy the guarantees of citizenship equally with members of the white race. Nothing compels the continuance of a narrow legalistic interpretation of the removal provision, a statute which forms an indispensable link in the congressional plan to effectuate equal rights. It is stultifying to the recently enacted section 901, permitting appellate review of remand orders, to persist in the devitalizing constriction of section 1443. Legislating a right of appeal would be of little worth if Congress did not mean to give section 1443 new force.
The authors of section 901 of the 1964 Civil Rights Act disavowed styptic interpretations of section 1443(1). Senator Humphrey, the floor manager of the Civil Rights bill, noted the apparent limitations imposed by the Rives-Powers doctrine, and added the significant comment that
“the real problem at present is not a statute which is on its face unconstitutional; it is the unconstitutional application of a statute. When a state statute has been unconstitutionally applied, most Federal District Judges presently believe themselves bound by these old decisions * * *. Enactment of [section 9011 will give the appellate courts an opportunity to re-examine the question.” 110 Cong.Rec. 6551 (1964). (Emphasis added.)
The point was put even more strongly by Senator Dodd, who had primary responsibility in the Senate for the enactment of section 901, see id. at 6953. In his words,
“An examination of the legislative history of the act of 1866 * * * and of the apparent Congressional purpose clearly suggests that these old interpretations are erroneous. * * #•
“Accordingly the removal statute, intended by Congress to be * * * one of the great bulwarks of equality, is of little or no value today.” Id. at 6955.
It was precisely for the purpose of correcting the unwarranted interpretation of section 1443 that section 901 was enacted, since under its provisions; again in Senator Dodd’s words, “the appellate courts will be able to consider what the removal statute means and what Congress *789intended when it enacted the statute. Ibid. He observed:
“In particular, I think cases to be tried in state courts in communities where there is a pervasive hostility to civil rights, and cases involving efforts to use the court process as a means of intimidation, ought to be removable under this section [1443J.” Ibid. (Emphasis added).
This is precisely the distinguishing feature stressed by the Fifth Circuit in Peacock.52
Thus, it is plain that in enacting section 901, it was the congressional purpose that the Rives-Powers interpretation, if not explicitly rejected by the appellate courts, should nevertheless not stand in the way of removal in cases like those now before us — where the claim is that state criminal prosecutions have been brought to intimidate petitioners, and community hostility to the assertion of equal rights makes a fair trial in the local courts unlikely. The legislative history plainly calls on the federal courts to extend removal to minority groups who can show that local prejudice, expressed through the unconstitutional application of state laws, affects their rights.53 The unwitting effect of the majority’s clinging to the gloss placed by Rives-Powers upon paragraph 1 is to put our circuit in the cynical position of saying to the petitioners: “Remand orders may now be reviewed on appeal, but this will do you no good, for we will adhere to a paralyzing construction of section 1443.” We do not think the Supreme Court today would acquiesce in such a reading.54
. See language of the House Judiciary Committee Report, U.S.Code, Cong. & Adm.News, 88 Cong., vol. 2, p. 2518, explaining the amendment to § 1447(d) al*773lowing appeal from remand orders in civil rights cases. The report points out that the absence of an appeal had been used “by many southern Federal judges to deny judicial relief for citizens who have been prosecuted in the State courts for exercising their rights guaranteed by the Constitution.”
. Baines v. City of Danville, 337 F.2d 579 (4th Cir. 1964).
. Act of July 2, 1964, Pub.L. 88-352, 78 Stat. 246.
. To the extent that these demonstrators were seeking enforcement of rights guaranteed by the Civil Rights Act of 1964, their prosecutions would clearly be abated. Hamm v. City of Rock Hill, 379 U.S. 306, 85 S.Ct. 384, 13 L.Ed.2d 300 (1965). The present opinion of the majority accepts the holding of Rachel that prosecutions for conduct protected by the Civil Rights Act are removable to the federal forum. Thus, at the very least, there must be a hearing to determine whether any of these petitioners are entitled to removal under Rachel, since the District Judge made no findings of fact. See 337 F.2d at 583.
. The majority frame the issue to be whether “law providing for * * * equal civil rights” encompasses “general first and fourteenth amendment rights.” (Emphasis added.) But the inquiry is not so broad — the issue is only whether that phrase encompasses the denial of “egalitarian civil rights” asserted here.
. See 43 Cong.Globe, 39th Cong.. 1st Sess. at 599-60 (remarks of Senator Trumbull) ; id. at 1151 (remarks of Representative Thayer). In response to a question by Senator McDougall of California, opposing the bill, Senator Trumbull, manager of the bill in the Senate, stated:
“These I understand to be civil rights, fundamental rights belonging to every man as a free man, and which under the Constitution as it now exists we have a right to protect every man in.”
Mr. McDougall: “Allow me to remark that I think all these rights should be conceded. Do I understand that this bill does not go further than to give protection to the enjoyment of life and liberty and the pursuit of happiness and the protection of the courts, and to have justice administered to all? Do I understand that it is not designed to involve the question of political rights?”
Mr. Trumbull: “The bill has nothing to do with the political rights or status of parties. It is confined exclusively to their civil rights, such rights as should appertain to every free man.” 43 Cong. Globe, 39th Cong., 1st Sess. at 476.
The contrast drawn between civil and political rights in this exchange highlights the encompassing scope intended for section 1 in the civil sphere.
. See 43 Cong.Globe, 39th Cong., 1st Sess. at 474-81, 497-507, 522-30, 569-78, 594r-606 (Senate debates); id. at 1115-25, 1151-62, 1262-72 (House debates). The opposition argued that the bill invaded areas previously reserved to the states, by giving, for example,
“ * * * authority over the judicial tribunals in the administration of law in the states; [and] denying to the states of their power of regulation.” Id. at 478 (remarks of Senator Sauls-bury).
And of particular significance to these cases was the expressed concern that any time “after the indictment,” cases might be removed to the federal courts. Ibid.
The proponents of the bill replied that the granting of section 1 rights was authorized by the enabling clause of the Thirteenth Amendment and by the general power to grant citizenship to foreigners. See also Bickel. The Original Understanding and the Segregation Decision, 69 HarvX.Rev. 1 (1955) (reprinted in appendix to Bickel, “Politics and the Warren Court” (1965)).
. See Hurd v. Hodge, 334 U.S. 24, 32-33, 68 S.Ct. 847, 92 L.Ed. 1187 (1948); Slaughterhouse cases, 83 U.S. (16 Wall.) 36, 93, 96-97, 21 L.Ed. 394 (1873) (dissenting opinion of Field, .T.); Maslow and Robinson, Civil Rights Legislation and the Quest for Equality, 20 U.Chi.L.Rev. 363, 368-69 (1953). The Joint Resolution submitting the Fourteenth Amendment to the states passed the Senate on June 8, 1866, and the House on June 13, barely two months after the enactment of the 1866 Civil Rights Act. 43 Cong.Globe, 39th Cong., 1st Sess. 3042, 3148.
. The statute gave to all persons
“the same right * * * [to] full and equal benefit of all laws and proceedings for the security of persons and property, as is enjoyed by white citizens, * * *,”
while the Equal Protection Clause provides :
“[N]or shall any State * * * deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. Amend. XIV, § 1.
. In Hurd v. Hodge, supra, n. 6, the question was whether section 1 of the 1866 Civil Rights Act prohibited enforcement of a restrictive covenant. Chief Justice Vinson, for the Court, said without dissent:
“In considering whether judicial enforcement of restrictive covenants is the kind of governmental action which the first section of the Civil Rights Act of 1866 was intended to prohibit, reference must be made to the scope amd purposes of the Fourteenth Amendment; for that statute and the *776Amendment were closely related both in inception and in the objectives which Congress sought to achieve.
“Both the Civil Rights Act of 1866 and the joint resolution which was later adopted as the Fourteenth Amendment were passed in the first session of the Thirty-Ninth Congress. Frequent references to the Civil Rights Act are to be found in the record of the legislative debates on the adoption of the Amendment. It is clear that in many significant respects the statute and the Amendment were expressions of the same general congressional policy. Indeed, as the legislative debates reveal, one of the primary purposes of many members of Congress in supporting the adoption of the Fourteenth Amendment was to incorporate the guaranties of the Civil Rights Act of 1866 in the organic law of the land. Others supported the adoption of the Amendment in order to eliminate doubt as to the constitutional validity of the Civil Rights Act as applied to the States.” Id. 334 U.S. at 31-33, 68 S.Ct. at 851-852 (Emphasis added.)
. See Cong.Globe, 42nd Cong., 1st Sess., at 568 (remarks of Senator Edmunds). Commenting on the purpose of the 1871 Civil Rights Act, see infra n. 14, Senator Edmunds said
“it is merely carrying out the principles of the [1866] civil rights bill, which has since become a part of the Constitution.”
. See Hurd v. Hodge, supra n. 6; Buchanan v. Warley, 245 U.S. 60, 78-79, 38 S.Ct. 16, 62 L.Ed. 149; Com. of Virginia v. Rives, 100 U.S. 313, 319, 25 L.Ed. 667 (1880).
. See Peacock v. City of Greenwood, 347 F.2d 679, 682 (5th Cir.1965); Steele v. Superior Court of California, 164 F.2d 781 (9th Cir.1947); People of State of New York v. Galamison, 342 F.2d 255, 271 (2d Cir.1965) (dictum):
“There is no possible doubt that § 1443(1) applies to the grantees of equal rights under the equal protection clause and egalitarian statutes * * .” (Friendly, J.)
. Act of April 9, 1866, ch. 31 § 1, 14 Stat. 27.
. Act of May 31, 1870, ch. 114, § 16, 16 Stat. 144. This is the provision conferring jurisdiction on federal courts for the enforcement of rights protected by the Act. The entire 1866 statute was reenacted, following ratification of the Fourteenth Amendment, to insure constitutionality.
. Act of April 20, 1871, ch. 22, § 1, 17 Stat. 13:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, *777subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
This provision now appears as 42 U.S. O.A. § 1983 (1958).
. Both statutes were enacted in response to the difficulties faced by the newly-emancipated Negro, particularly through the inequal enforcement of state laws, see infra n. 23 and accompanying text. And while the 1871 Act covered a much wider scope of rights,
“[tjhe model for it will be found in the second section of the act of April 9, 1866, known as the ‘civil rights act.’ * * * This section of this [1871] bill, on the same state of facts not only provides a civil remedy for persons whose former condition may have been that of slaves, but also to all people where, under color of State law, they or any of them may be deprived of rights * * *.” Cong. Globe, 42 Cong., 1st Sess.App. 68. (Report by Mr. Shellabarger, reporting out the bill which became the 1871 Act.) (Emphasis added.)
The second section of the 1866 Act provided a criminal penalty against- any state official who, acting under color of authority of a state law, statute, ordinance, regulation or custom, deprived a person of any of the rights granted in section 1. See n. 25 infra, and it was this same set of facts that authorized removal under section 3. See infra nn„ 25-32 and accompanying text.
With respect to denials of equal civil rights, the 1871 Act was thus the third leg of a triangle. A person deprived of rights secured by section 1 of the 1866 Act could: (a) have the offending official subjected to criminal prosecution under section 2 of the 1866 Act, cf., e.g., Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945) (denial of broad due process rights) ; (b) protect the affected rights against further intrusions under section 3 of the same Act by removal to a federal court, see Peacock v. City of Greenwood, 347 F.2d 679 (5th Cir.1965) (suppression of equal civil rights by mass arrests); and (c) secure a civil remedy under section 1 of the 1871 Act against the offending state official. See, e.g., Dombrowski v. Pfister, 381 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) (injunction against continuing suppression of equal civil rights under color of state law).
. Use of the term “laws” in a broad sense to include “constitutions” as well as “statutes” was not unusual in the Reconstruction Congress. Section 2 of the 1866 Civil Rights Act, which established the preconditions for a section 3 removal, referred to deprivations of rights by any person under color of “any law, statute, ordinance, regulation or custom.” “Laws” in this sense clearly embraces state constitutions. When the 1875 revisor came to recodify the various provisions of the 1866 Act, it was therefore natural for him to employ “laws” in section 641 in a similarly inclusive sense.
. Rev.Stat. §§ 1977, 1978 (1875).
. In fact, if our brethren’s initial assumption of the restricted nature of protected rights is accepted, their suggestion that the term “laws” would permit future *778statutory grants to come within the removal clause would attribute to the 1875 revisor an intention to expand section 3 beyond its original scope, an intention steadfastly denied in the majority opinion.
. Much of the difficulty in the interpretation of the statute is attributable to a failure to recognize the presence of these alternative constructions. As originally proposed by Senator Trumbull, the bill protected
“persons who are denied or cannot enforce in the courts or judicial tribunals of the State or locality where they may be any of the rights secured to them by the act;” 43 Cong. Globe, 39th Cong., 1st Sess. at 211 (Jan. 4, 1866).
The identical language, without clarifying punctuation, appears in section 3 of the original statute, Act of April 9, 1866, ch. 31, § 3, 14 Stat. 27. In the 1875 revision, it was slightly reworded to protect
“any person who is denied or cannot enforce in the judicial tribunals of the State [, or in the part of the State where such suit or prosecution is pending,] any right secured to him by any law providing for the equal civil rights *779of citizens of the United States * * .” Rev.Stat. § 641 (1875). (Bracketed material added in 1875 statute).
Despite the absence of any clarifying punctuation, the Court stated without discussion in Com. of Virginia v. Rives, 100 U.S. 313, 321, 25 L.Ed. 667 (1880), that “that act gives the right of removal only to a person ‘who is denied, or cannot enforce, in the judicial tribunals of the State his equal civil rights.’ ” No explanation is given of the source of this punctuation, and it can only be explained by the concentration in Rives on the problem of showing a denial of rights which in that case was alleged would occur at the trial iself. See infra n. 40. The additional punctuation supplied by the Court served only to illustrate the statutory meaning in the context there discussed, not in all cases which might arise under the removal provisions.
Nevertheless, this may explain the assumption made by Professor Amsterdam that removal relates only to events or conditions in the actual trial itself, rather than to “denials” of equal civil rights occurring before trial. Compare Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed Civil Rights: Federal Removal and Habeas Corpus Jurisdiction to Abort State Court Trial, 113 U.Pa.L.Rev. 793, 851 (1965) (hereinafter cited as Amsterdam). See also Note, 51 Va.L.Rev. 950, 952, 971 (1965).
. These were the so-called “Black Codes.” See, e.g., 43 Cong. Globe, 39th Cong., 1st Sess. 474 (Jan. 29, 1866) (remarks of Senator Trumbull); id. at 1151 (March 2, 1866) (remarks of Representative Thayer). It is clear from examination of the debates that these Codes were not the exclusive .targets of the federal legislation; they were cited primarily as evidence of the inability of Southern Negroes to enforce their rights. See, e.g., id. at 603, 605, 1118, 1160.
. See particularly Senator Trumbull’s speech urging passage of the Act over President Johnson’s veto, 43 Cong. Globe, 39th Cong., 1st Sess. at 1759 (April 4, 1866). See also id. at 1123 (remarks of Representative Cook); 1151 (remarks of Representative Thayer). A prime example was Virginia’s vagrancy law, which General Terry, Commandant of the Virginia Military District, reported was being administered in such a way that
“[i]ts ultimate effect * * * will be to reduce the freedmen to a condition of servitude worse than that from which they have been emancipated — a condition which will be slavery in all but its name.” 43 Cong. Globe 1759.
Therefore, Terry ordered that “no magistrate, civil officer, or other person, shall, in any way or manner, apply or attempt to apply the provision of said statute to any colored person in his department.” Ibid.
And in his discussion of Congress’ authority to subject state officials to criminal sanctions under section 2 of the 1866 Act, Senator Trumbull averted time and again to deprivations of civil rights by both “State judges and other officials” and by “judges or Governors or ministerial officers.” Id. at 1758 (emphasis added), a clear indication that Congress was concerned with more than just facial statutory denials of equal civil rights, occurring at the trial itself.
. As originally introduced, this portion of the bill referred to persons acting under “cover” of authority; “cover” was changed to “color” in the final version, with no apparent change in meaning.
. This is now 18 U.S.O.A. § 242 (1958). Original section 2 provided:
“[A]ny person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by this act, or to different punishment, pains, or penalties on account of such person having at any time been held in a condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, or by reason of his color or race, than is prescribed for the punishment of white persons, shall be deemed guilty of a misdemeanor.”
Originally concerned only with the equal civil rights secured by section 1 of the 1866 Act, section 2 was expanded in 1874 to impose the same criminal sanctions for deprivations of any “rights, privileges and immunities” secured by the Constitution. See Rev.Stat. § 5510 (1875). In 1909, Congress added the requirement that such deprivations be made “willfully,” Act of March 4, 1909, 35 Stat. 1092, although Senator Trumbull had expressed the view in the original debates that there could be no convictions under the section without a showing of criminal intent. 43 Cong.Globe, 39th Cong., 1st Sess. at 1758. See generally Screws v. United States, 325 U.S. 91, 98-100, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). In all other respects, including the reference to “persons” acting “under color of any law,” 18 U.S.C. § 242 is identical to section 2 of the 1866 Act.
. See e. g., Williams v. United States, 341 U.S. 97 (1951) 71 S.Ct. 576, 95 L.Ed. 774 (special policeman coercing confession) ; Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031 (1945) (sheriff beating arrested Negro). In both instances the Supreme Court applied 18 U.S.C. § 242, the successor to section 2 of the Civil Rights Act, to penalize illegal activities of police officials unrelated to any occurrences in „ the judicial process itself.
. Concern was not merely with denial of rights in the courtroom. Congressional preoccupation with the role of state officials in the denial of Negroes’ equal civil rights was demonstrated in still another way. Congress was aware that state officials who were unwilling to join in denying Negroes their equal civil rights might subject themselves to the possibility of prosecution in the state courts. For the protection of such officials the bill was therefore amended in the House to permit any state official to remove to the federal court any prosecution brought against him in the state court “for refusing to do any act on the ground that it would be inconsistent with [the Civil Rights] act.” 43 Cong.Globe, 39th Cong., 1st Sess. 1366 (March 13, 1866) ; see id. at 1367 (remarks of Representative Wilson, House Judiciary Chairman and floor manager of the bill). ' Thus, had any state or local policeman been prosecuted for failure to enforce the Danville ordinances against these demonstrators, on the grounds that such sweeping arrests and prosecutions were effectively denying equal civil rights, his case would have been removable to the federal courts.
. “[T]he district courts * * * shall have, exclusively of the courts of the several States, cognizance of all crimes and offences committed against * * * this act * *
. “[The district courts shall have cognizance] of all causes, civil and criminal, affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the State or locality where they may be any of the .rights secured to them by the first section of this act; * * If
. See note 17, supra, for discussion of the civil remedy against an offending state official, added in 1871 as the third leg of this triangle.
. Nevertheless, the statute did not contemplate wholesale removal of all cases alleging denials of any equal civil right. In contrast to the broad class of rights subsequently protected by the criminal provisions of the Act of 1874, now 18 U.S.C.A. §-242 (1958), and the 1871 civil remedy against the offending state official, now 42 U.S.C.A. § 1983 (1958), Congress specifically qualified the removal rights in section 1 of the 1866 statute by the phrase “as enjoyed by white persons.” The suggestion that section 1443 (1) might permit greatly expanded removal is thus unfounded: the statute applies only to deprivations, under color of law, of equal racial civil rights. Compare Amsterdam, 874.
. See Senator Trumbull’s analysis of the two sections at 43 Cong.Globe, 39th Cong., 1st Sess. 1758-59 (April 4, 1866). In the House the point was made most clearly by Representative Kerr, who opposed the bill:
“Viewing [section 2] and the first section of the bill together, we learn that the proposed statute will be both remedial and penal in. its character. It purposes to protect certain rights and to punish for the failure to protect them.” Id. at 1270.
. Id. at 1680; see n. 35, infra.
. See 43 Cong.Globe, 39th Cong., 1st Sess. at 1759 (April 4, 1866). This was Senator Trumbull’s characterization of President Johnson’s attack on the statute.
In reading the veto message id. at 1680, it is important to realize that the President’s view of section 3’s coverage depended on his concept of the type of state officers who might be subject to criminal liability under section 2. Johnson feared that the bill would divest the state judiciary of discretion to interpret and apply state laws; thus his statement that the measure could subject to liability
“judges of the State courts who should render judgments in antagonism with (the bill’s) terms; and * * marshals and sheriffs, who should, as ministerial officers, execute processes, sanctioned by state laws and issued by State judges, in execution of their judgments.” Ibid.
Trumbull replied that while state judges were indeed among those who might be affected by section 2, no state official would be subject to its penalties unless he had acted with criminal intent, see id. at 1758; and the Senator did not address himself to the types of state officials involved. However, the courts have consistently given this provision its natural meaning, as applying to any state official before, during or after the trial. Supra, n. 27.
To support the construction of section 2 as applicable only to state officials acting in a judicial or post-judicial setting, the President read section 3 in a similar vein:
“The construction which I have given to the second section [which has since been rejected by the courts] is strengthened by this third section, for it makes clear what kind of denial or deprivation of the rights secured by the first section was in contemplation. It is a denial or deprivation of such rights in the courts or judicial tribunals of the State. It stands, therefore, clear of doubt that the offence and the penalties provided in the second section are intended for the State judge, * * 43 Cong.Globe, 39th Cong., 1st Sess. at 1680. (Bracketed words supplied.) Since the President was concerned with the effect of the bill on state courts, it was natural to emphasize its application to the judiciary; but this was not its only application. The subsequent broad reading of the re-enactments of section 2 of the 1866 Act demonstrates that the two provisions, §§ 2 and 3, were intended to apply to all instances of deprivations of equal civil rights by any person acting under color of state law.
. See note 38 and accompanying text of the majority opinion. The complete speech, insofar as it discussed section 3,-was as follows:
“The President objects to the third section of the bill that it gives the district courts exclusive jurisdiction of all crimes and offenses committed against the act. Well, sir, that is no new thing. The United States courts have always had jurisdiction of crimes and offenses committed against United States laws. But it further, he insists, gives jurisdiction to all cases affecting persons discriminated against, as provided in the first and second sections of the bill; and by a strained construction the President seeks to divest State courts, not only of jurisdiction of the particular case where a party is discriminated against, but of all cases affecting him or which might affect him. This is not the meaning of the section. I have already shown, in commenting on the second section of the bill, that no person is liable to its penalties except the one who does an act which is made penal; that is, deprives another of some right that he is entitled to, or subjects him to some punishment that he ought not to bear.
“So, in reference to this third section, the jurisdiction is given to the Federal courts of a case affecting the person that is discriminated against. Now, he is not necessarily discriminated against, because there may be a custom in the community discriminating against him, nor because a legislature may have passed a statute discriminating against him; that statute is of no validity if it comes in conflict with a statute of the United States; and it is not to be presumed that any judge of a State court *783would hold that a statute of a State discriminating against a person on account of color was valid when there was a statute of the United States with which it was in direct conflict, and the case would not therefore rise in which a party was discriminated against until it was tested, and then if the discrimination was held valid he would have a right to remove it to a Federal court —or, if undertaking to enforce his right in a State court he was denied that right, then he could go into the Federal court; but it by no means follows that every person would have a right in the first instance to go to the Federal court because there was on the statute book of the State a law discriminating against him, the presumption being that the judge of the court, when he came to act upon the case, would, in obedience to the paramount law of the United States, hold the State statute to be invalid.” 43 Cong.Globe, 39th Gong., 1st Sess. at 1759, (April 4, 1866).
. Section 3 also provided original federal jurisdiction for the assertion of rights denied by the actions of state. officials, note 29, supra, but unless this were limited to persopq who had actually been affected by a denial, it would have been possible for anyone to file such original action on a bare allegation of the existence of a discriminatory custom. This was clearly part of Johnson’s concern; a concern answered by Trumbull’s requirement that the person show a causal relation between the discriminatory statute or custom and the right sought to be enforced.
And as the majority suggests in its footnote 39, Senator Trumbull may only have been referring to a case where the state statutes predated the 1866 Act, which would be presumed to be a nullity under the supremacy clause. See Neal v. State of Delaware, 103 U.S. 370, 26 L.Ed. 567 (1881). Under this view, pretrial removal would be possible by a showing of state action under any state law which, after 1866, was either enacted or applied in deprivation of section 1 rights.
. Compare State of Texas v. Gaines, 23 Fed.Cas. p. 869, No. 13847, 2 Woods 342 (1874), where Justice Bradley denied a removal petition containing- only general averments of local prejudice; with no specification of how the petitioner had been affected at the time of removal.
. The statute contemplated removal “for trial” at any time “after the commencement of proceedings.” These phrases are rendered meaningless by an interpretation that prohibits removal at any time prior to trial.
. See, e. g., Com. of Kentucky v. Powers, 201 U.S. 1, 26 S.Ct. 387, 50 L.Ed. 633 (1906); Bush v. Com. of Kentucky, 107 U.S. 110, 1 S.Ct. 625, 27 L.Ed. 354 (1882); Neal v. State of Delaware, 103 U.S. 370, 26 L.Ed. 567 (1881); Com. of Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667 (1880).
. This was clearly the concern of the Court in the pivotal case of Com. of Virginia v. Rives, 100 U.S. 313, 25 L.Ed. 667 (1880). In their removal petitions filed before trial, petitioners had alleged that their right to equal protection of the laws would be denied in their state trials because of systematic exclusion of Negroes from the jury. The Court pointed out that the 1875 version of the removal statute anticipated only pretrial removal, id. 100 U.S. at 319,
“[b]ut the violation of the constitutional provisions, when made by the judicial tribunals of a State, may be, and generally will be, after the trial has commenced.” Ibid. (Emphasis added.)
Thus, a defendant would not be able to affirm until at or after the trial itself that the equal protection of the laws would not be extended to him, and
“[i]t is obvious, therefore, that to such a case — that is, a judicial infraction of the constitutional inhibitions, after trial or final hearing has commenced — sec. 641 has no applicability. It was not intended to reach such cases.” Ibid. (Emphasis added.)
Consequently, with respect to denials of rights which would not be manifested until the trial, the only way in which removal could be invoked would be by showing that the state had already acted to deny these rights through specific legislation affecting the pending trial. Such legislation alone, in the Rives view, would support an affirmation of “inability to enforce” rights in the state court. Id. 100 U.S. at 321.
The particular factual setting of Rives —claims of prospective denial of equal rights in the state court — explains the Court’s later dictum that the act
“gives the right of removal only to a person ‘who is denied [,] or cannot enforce [,] in the judicial tribunals of the State his equal civil rights.’ ” Ibid. (Brackets added; emphasis in original.)
Since the defendants had relied on claimed denials that would arise, if at all, in the courts of the state, the punctuation added to the Court’s quoted excerpt from the 1875 Act indicates no more than an emphasis on the particular allegations involved in the case. The Court did not purport to deal with the case where the denial of rights itself — not the evidence of a prospective denial — occurred prior to trial; its earlier emphasis on the elimination of post-judgment removal, and the availability of pr^-trial removal, clearly contemplates removal for denials other than those arising in the courts.
. “This harassment is endemic to the popular, localized, politics-dominated state criminal administration. It is worked, for the most part, not by final judgment of conviction but by mesne process. It can be stopped only by a federal anticipatory jurisdiction as broad as the evil itself.” Amsterdam, 909-10.
. We are advertent to the affirmance by the Supreme Court of Wells v. Hand, 238 F.Supp. 779 (M.D.Ga.1965), sub nom. Wells v. Reynolds, 382 U.S. 39, 86 S.Ct. 160, 15 L.Ed.2d 32, (Oct. 18, 1965), where an injunction against a state prosecution was denied; but that case is different from HonibrowsTci, and from the instant case, which seeks only removal. In Wells the court found after plenary hearing that there was no denial of the plaintiffs’ civil rights, or any scheme to arrest for the purpose of depriving them or others of any constitutional rights, or any misuse of the criminal process, or any reason to believe that they could not receive a fair trial in the state court. To the contrary, the petition in this case, as we show, alleges all of these grounds for removal.
. See, e. g., Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed,2d 1152 (1957); Railroad Comm. of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct, 643, 85 L.Ed. 971 (1941); cases cited in Wright, Federal Courts, 170 n. 6 (1963). See generally 1 Barron & Holtzoff, Federal Practice & Procedure (Wright ed.) § 64. But cf. McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963).
. Judicial eradication of this common underlying assumption is even more significant in light of the close relation between the original injunction provisions, Act of 1871, and the original removal provisions. See note 17, supra, and accompanying text.
. Insofar as removal is authorized solely by the denial of rights before trial, the question of vertical enforceability is clearly mooted; once a right has been denied, the statute contemplates removal independent of what may occur in the courtroom.
. In the principal speech urging passage of the 1866 Act over President Andrew Johnson’s veto, Senator Trumbull pointed out that “in some communities in the South a custom prevails by which different punishment is inflicted upon the blacks from that meted out to whites for the same offense.” Cong.Globe, 39th Cong. 1st Sess. 1758 (April 4, 1866). (Emphasis added.) Recent history indicates that 100 years have not entirely eliminated these local customs.
. See Peacock v. City of Greenwood, supra, and our discussion of the 1964 Congress’ view of the proper interpretation of § 1443(1), infra, Part VII.
. Lusky, “Racial Discrimination and The Federal Law: A Problem in Nullification,” 63 Colum.L.Rev. 1163, 1182 (1963).
. For a striking portrayal see Amsterdam at 796-99.
. In the analogous area of federal habeas corpus, the Supreme Court has emphasized the importance of the record formulation in litigation over constitutional claims. See Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Townsend v. Sain, 372 U.S. 293, 312, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).
. See Civil Rights Acts of 1964, Pub.L. 88-352, 78 Stat. 241; 1960, Pub.L. 86-449, 74 Stat. 90; 1957, Pub.L. 85-315, 71 Stat. 637.
. In the House a similar view was expressed by Representative Kastenmeir, manager of section 901. He stated that one of the prime purposes of the section was “that the Court [s] of appeals be authorized to reinterpret these [removal] laws.” 110 Cong.Rec. 2770 (1964). He anticipated that
“under reinterpretation of section 1443 cases involving State criminal prosecution brought to intimidate the petitioner, [and] cases involving such community hostility that a fair trial in the State or local courts is unlikely or impossible * * * might now well be construed to be within the scope of said section. If so, once again we will breathe life into the Civil Rights Act of 1866 and give meaning to the purpose intended.” Ibid.
For further discussion, see Amsterdam at 859.
. See Note, 43 N.C.L.Rev. 628, 635 (1965).
. Because we conclude that removal of these cases is authorized under section 1443(1), we need not now consider whether paragraph (2) of the section, which authorizes removal of state prosecutions for acts done under “color of authority of laws providing for equal civil rights,” applies to private persons. The Fifth Circuit in Peacock states in dictum that paragraph (2) does not apply to private persons, and the rationale of the majority opinion in People of State of New York v. Galamison, 342 F.2d 255 (2d Cir. 1965), leads to the same result. See also City of Chester v. Anderson, 347 F.2d 823 (3d Cir. 1965) (per curiam opinion, with Judge Biggs dissenting). On the other hand, Judge Marshall’s dissent in Galamison argues cogently that, when applied to particular situations, paragraph (2) allows removal of prosecutions against private individuals; and Professor Amsterdam, after meticulous analysis of the legislative history of the statute, agrees with Judge Marshall. See Amsterdam, at 874-78.