Show REMARKS by Se senators nalora sherman edmunds thurman and Trum 1 buU on 01 the utah biu bill in the senate february 1873 mr sherman on examining c this bill the first query that mccu occurred r to my mind was in regard to the organization of the tribunal to select the jury and it appeared to me that the judge ought not to have anything to do with it I 1 know that under the law as it n now ow stands the judges of the united states district courts have something thing to do with selecting the jury f but that is merely a nominal jit jut duty ry conferred practically of course on the subordinate officers the clerk and marshal the judge may be called upon to try the validity of the panel and the judge from the nature of his office is not familiar with the people mr Freling huysen personally I 1 do not think it very important but there is a difference of opinion in the senate as to which is the best officer it may be said iri in favor of the judge that he knows the quail fixations ficat fleat ions ious of men as jurors better than the governor would but I 1 think the tribunal constituted e either I 1 way the selection being made by the governor or by the judge would answer the purpose the judge can have but very little control over the panel of twelve men because they are selected after they have passed the judgment of four others nii nyi mr r sherman I 1 see the objection to the governor being consul consulted t he is the executive officer of the territory called upon to execute the laws and he is a man who necessarily ups mog takes sides fides on political questions I 1 1 scions he may be ke a man of strong tr 0 ng partisan feelings and from the nature 0 of f his office I 1 I 1 think he ought not to be galled called to adminis administer ter anything in connection with the courts I 1 am sure it would be a no novel vel vei proceeding proc edding to allow the governor of a state to elect ct jurors juror to t try ry causes and therefore I 1 do not think bink t the governor ought to be inserted here bore but it seems to me some local authority whose power emanates from the people and doe does not emanate from the united states government ought to bo be selected to join thosa these commissioners commissi the great objection that abam iban I 1 to this section one that struck me die dle in the first lna Ina instance tance vms that t his this placed libed the whee power in the halda haida of officers appointed b by Y the of tho the united states while the tiie local authorities or pig pie ought to be represented in the election selection there is the cfall trials and of all eurl sua ehna by the people or representing the people should constitute a part of the tile board to organize the juries I 1 am not myself familiar with the organizations of the territories and I 1 do not know whether there is any officer of a general character elected by the people to select mr edmunds let lot me suggest to my friend that I 1 believe his colleague has proposed an amendment which will be satisfactory to the committe as far as I 1 have been able to consult them which provides that this jury board shall bo be composed in addition to the three officers named in the bill of two commissioners mi ners who are to be elected by the territorial legislature that meets meet the very suggestion which the senator now on the floor lias has made mr shurman sherman I 1 think we ought not to provide in this bill for a deadlock we ought to have an uneven number mr air edmunds we have mr air sherman my aly colleague tells me he proposed apropo ed to have three elected by the legislature mr air E edmunds yes but the committee will ask the senate to make it two and we supposed he was satisfied with that while we iro ure are ire willing to go as far as possible to suit all sides because we do not wish to advance one side at the expense of the other we shall certainly senate while we are q quite willing to go two not togo to go three mr sherman I 1 have no objection to that plan but I 1 think neither the judge nor the governor ought to be on this board I 1 can see reasons against it it seems to me the number ought to be uneven it ought to be presumed thai thal that officers of the government will be reasonably dispassionate and yet their action ought not to be absolutely ninal final but watched wat clied by some representative of the people and I 1 think therefore a board of three persons zedin the way proposed two officers of the government of the united states and one representing the people of tile the territory rito 1 or vice versa one officer of or the iao lao government vern ment and two named by the people to constitute the board for the selection of hon honest est j juries urie urle fair men from the various classes of society it is not to be presumed that the juries would be packed at the very foundation I 1 think th thee character of these officers ought not to embrace either the head of judiciary the or the head of the executive department of the territory mr edmunds one of the reasons why the committee thought it right to take the judge was this the territory of utah comprises a very large extent of area it is divided into three judicial districts it has more than three places of administering justice and now if you take the governor of the territory as one of this board of jury commissioners so to describe them he must go to the county seat in each district preceding 0 a given term in each year so as to compose one of this board whereas if you take the judge of whom there are three then each judge assigned to a district is on the ehg tand is th therefore ere able to perform the functions without additional expense aud and without any inconvenience hence to us the idea of putting in the governor as one of this board of jury commissioners which is to act in various places and it might ha happen at the very same time or 8 substantially u r ly at the same time would be impracticable now as to the theory of the judge ge to which objection has been made what is isit it it iswald is said baid that the judge is to control his jury by no means the judge is to make one ora of a board of three or or five as the case ease may be who are not to select the jury for ta thab that lat term he does not determine which twelve men are to come but acting for the whole year and for the whole district he be merely composes compose 9 one of the board who select two hundred citizens without reference to their opinions as to rell reil religion or as to social questions or as 5 to politics 1 who are to be the body of po the h people in that district from whom the jurors for the terms for the next year are to be drawn what can be fairer than that even if we are to assume that all fudges judges are corrupt or are open to dias blas and partiality how bow much bettor better could coul you provide to get got a away way from tho the passions and biases of men than that suppose he wish wishes m to get in his men friends if it tho whole body of or the commini com community muni are hla hia frends friends he must get them ID of 11 course 10 U and if they are ho be will unquestionably 0 at IZ bucura what tho the sense of the whole body of the community is generally is justice I 1 believe in the to a very considerable extent now suppose on the other hand that this judge not occupying a political position as the governor doe does and holding trials in all the counties in his district from year to year and from term to term becomes acquainted quain ted with the composition of society he sees the gentlemen who compose the grand and petit juries lie he sees the suitors he be sees the witnesses he sees the citizens who may attend as spectators on the administration of justice and therefore he becomes ina lna in a greater or less degree acquainted itil etli tile the reputations of the citizens and accordingly if lie he bo be a pure man as we must assume that every judge e is as a rule otherwise ise lse society is good for nothing at all for society without justice justlee is the worst sham that ever was he is the very person for this duty he hear rumon about the citizen citizens he knows them to a greater or ies ils less 8 de degree greelie he know their reputations what fairer man could you renise the trust in than lie he to exclude from this list of two hundred not of a given jury let it be remembered but from this list of two hundred persons person those 0 ot 1 whom he has heard evil re reports borts whose reputations are not good who are thought to be bitter in their pen pem persecutions of a misguided sect or 01 who are thought to be bitter in in their persecutions of people who do rot believe in the tenets of a mis gudiel sect I 1 do not know any better way z and I 1 have llave studied it with whatever of faithfulness I 1 pos sess than to repose in him who is supposed to be apart from politics and who from his duties is supposed supposed to be acquainted with the body 0 the community in the district this duty of being one of the tribunal who are to select the great body 0 reputable citizens from whom by law the jurors are to be drawn but I 1 entirely agree so far as I 1 am concerned with the suggestion ot of my friend from ohio that it will add an additional adit ional safeguard to put in the provision that two persons elected by the territorial legislature who act merely as citizens thus selected shall compose a part of this board in order that if any fraud or injustice or contrivance is about to be perpetrated they may know it and expose it I 1 am quite willing to consent to that because I 1 think I 1 am safe when I 1 bay aay that I 1 express espres the unanimous opinion of the com corn cittee that we do not desire to persecute either sect or opposition to sect but only to have the fail fair course of impartial justice go on mr air Thur thurman mau man I 1 want simply before the vote is taken to call eail call eail the attention of the senate to what the immediate question is and that is the motion made by the senator from yew new jersey to amend the amendment boffl offered ered by me which provides for three jury commission ers to be chosen by the general assembly the senator from new jers jersey ey has moved to amend that by striking out three and inserting two 13 if that amendment be adopted then ho he and the senator from vermont are perfectly willing as I 1 understand that the or original ign al amendment shall shull be adopted so that the whole question really Is whether we shall have three iury jury jury jurs commissioners chos choe chosen en by the general assembly of utah or only two it is said that if it you have three there may be a deadlock between the three federal officers and the three thre jury ejury commissioners chosen by the assembly I 1 do not think there is any great danger of any such deadlock as that so aa as to result in the choice of no jurors at all I 1 do not think they will want to put a sto stepto to all ail judicial proceedings in the territory territory and therefore proceedings I 1 have hate ave ate no doubt whatever that if the jury commissioners were composed as I 1 have suggested there would be a selection of jurors and a good selection I 1 really do not think it ii very material or that it is wise wipe to give a majority either to the one side or the other but if we were to give a majority to either side I 1 think it would perhaps be more politic to give the to the people nople of that territory represented in in their general assembly and who compose nine nino tenths of all tho the people in the tho territory than to mah make o that majority consist of federal officers I 1 t hope however the amendment of the senator from new jorney will not be agreed to and that the proposition as I 1 have offered it will be accepted by the senate mr trumbull in making tho the sm suggestion estion estfon I 1 did to sub substitute kituto dial bt W july jury I 1 cirl did if without any particular desire to have the governor one of these thes se commissioners but my object was to provide lovide a commission that alioa should not be controlled by the court thed the jury hury ury has everywhere been regarded as a sa of the rights of the individual but a jury abury amounts to nothing if it is a jury selected simply by the court by tho judge it is not in accordance with the practice BO so far as I 1 know of any of the states to allow the judge of a court to provide his own jury is selected by some other tribunal some county court perhaps in many of our states or ily ply by some person not the judge of the tile court in which the jury is to act now I 1 think it would be desirable in this case to substitute some other person instead of the judge it t is said that the marshal and clerk act with him it must be remembered that the clerk is merely his appointee and the marshal is an officer of his court they are both under his control the object of a jury is to bo be a check upon the judge they are to decide upon the facts in every case and a p person indicted for a criminal is is entitled to have this jury iury trial and it seems to me it should be before juries not selected by the judge himself I 1 am not particular about substituting the governor of the territory but I 1 would take some person ot other b er than the judge it ha has 4 been suggested that the governor of the territory is an executive officer and an improper man for this purpose then take the surveyor general of the territory he is acquainted with everybody in it he surveys all the public lands and and knows all about it he is a permanent of officer fleer I 1 do not know who holds the position I 1 am not speaking as to individuals I 1 mean the united states surveyor general of utah I 1 do not know who the individual is and it is wholly immaterial I 1 am talking merely of the officer we have pw provided by law for a surveyor general for the territory of utah I 1 assume as the senator from vermont does that he be is a proper person without knowing knowin anything about who he is he wold woid would necessarily be a person acquainted throughout the territory because his duties are such that he be has to survey the public lands all over the terri terii territory tony tory and the lands in the territory chiefly belong to the united states he lie has lias a P permanent er manent offee office there and he is a permanent officer if there ia is objection to the governor having the power take the surveyor general or any person other than the judge I 1 am not particular as to who the individual is but buti I 1 do think that the jury kury should not be entirely selected by federal officers I 1 think the senator from ohio is right in reference to that and I 1 believe that the senator from stow slow stew new jersey acquiesces ces in the suie suiT suggestion to have a part of this commission made u up in I 1 some way frol the people wn the jury is a peoples body it comes from the people and were it not for the peculiar circumstances that exist in utah probably all of us would be willin willing that th the e J jury U us should be elected by some tr tribunal in the territory altogether but owing to events there that ia is not thought admissible then as you are to have haven a mixed commission to select the jury having upon it two or three persons from the territory I 1 think it would he desirable to remove to some extent the control of this selection from the judge himpeler himpe him relf pelf lr and put it upon some other officer if there is objection to the governor it strikes me thit tint the surveyor general of the Teril territory tory would be a person to whom there could be no possible objection on because he would have nothing g to do go with the execution of the laws he is an officer appointed by the president and con finned firmed by the senate and without knowing who he is I 1 assume that he be would be a fair and proper man to act in this capacity I 1 move to strike out the word judge where it |