Show REMARKS by Se senators natora taurman Ti urman bayard bayardi carpenter and ewart stewart Sf on the ufah utah MU beuf in the senate feb F eb 26 1873 mr air thurman I 1 move to amend section eighteen page 25 by in inserting after the word process iii in line eleven J these words and a writ of error from the supreme court of the tho united states to tho the supreme court of the territory shall lie in criminal cases where the accused shall have been sentenced to capital punishment or to imprisonment for six months or upward or to pay a fineff nine fine of 1030 or upward such writ U to be applied for by the person or persons convicted mr air frelin Freling huysen huyben I 1 should have no objection to i that amendment so far as it relates to capital of fences but I 1 think it is carrying it too far when you apply it to all criminal proceedings it would embarrass very much the criminal proceedings These judges are appointed by the president and confirmed by the senate and we certainly can trust them in the ordinary prosecution of criminal jurisprudence of that territory so far as it related to capital of fences I 1 would not object to the amendment air thurman I 1 am glad to hear the senator say that he agrees to it in ini the case of capital punishment but that is not nt going far enough the questions likely to arise upon which there ought to be the d decision eci eel I 1 of the supreme court of the united states will very seldom be cases in which the punishment is capital 1 I 1 hall hail have sought to restrict this amendment to cases in which the punishment is of great severity where it is either capital or imprisonment of six months or more or a fine of a thousand dollar dollars or more if there ought to be a greater safeguard than that or some greater restriction than that let it be made but do not restrict it ente entirely rely to cases wherein the tho punishment is capital if you think it ought to be where the punishment is imprisonment for a year or more so amend it if it ought to be where the fine is 2000 or more so amend it but do not limit it entirely to capital of fences my sole object is that there may b be e in regard to quest questions ions ious that every one can see deserve the most impartial and enlightened consideration a decision bya by a tribunal wholly removed from all local influences pasc pass passions dom dow interest interests beor sTor or prejudices a decision by a tribunal whose action will command universal respect and acquiescence in that territory we cannot conceal it from ourselves we know it to be so that in that territory there have been judges who have been rather remarkable for a spirit of persecution than for a spirit of enlightened and impartial administration of the law there may be such in the future there is a conflict there nine tenth tenths of that community belong to the mormon church barely one tenth of them are what are t here there called gentiles it is of the utmost consequence that the administration of the law shall be such as to command not simply the obedience but the respect of the people eople of that great territory and I 1 do 0 think that nothing would tend more to secure for the laws a faithful observance and to pr procure 0 cure for them a sincere respect than to allow cases eases to come up to the supreme court of the united states under reasonable restrictions emd thus obtain the decision of at high tribunal odthe of the last resor one word more and I 1 am done mr air president there is nothing in this world so dangerous as unrestrained power and judges are but men an unrestrained power in a judge maybe may be abused just as much as unrestrained power in a legislator or in any other individual the judge in utah acts under no higher sanction than members of congress congre s or members of ofa a legislature every officer in the united states takes an oath and an oath just as stringent just as binding on his conscience as the oath taken by the judge in utah but we know linow that unrestrained power is always dangerous now if you will give to the supreme judicial tribunal of the geine union nion a power to revise the decisions of these inferior courts it will operate as a salutary restraint upon them and make them cautious how they decide causes between man and man maii or between the public and thoe thoc who aro are brought before 4 thera ohern changed charged with of offenses ag against the tile law I 1 think every consideration teaches toadies us its that wo ive ought un der proper limitation to allow an appeal in the last resort to that highest judicial tribunal in the land which is wholly frel free e from any bias from any local feeling ing prejudice or interest and the high character of whose members is a sanction and an assurance that its ite decision will be precisely according to law mr air frelan huysen I 1 move to amend the amendment by striking out all after the words capital punishment ish ment ai the senator from ohio says that unrestrained power is dangerous that is true sir but in this territory the judges are nominated by the president and confirmed by the senate they are our own a appointees ap poin tees mr air bayard I 1 was about to ask the honorable senator from new jersey whether this law being applied to a territory was not necessarily a temporary act and made for a period filled with difficulty becu iary lary so and therefore requiring in some degree I 1 will not term it special legislation but legislation adapted for the peculiar and unhappy condition of affairs in which that portion of the country is found I 1 do not know anuw what is the value of this amendment if it be restrained to merely capital case ease beca because kise tise I 1 am not aware of any capital cas cares that could occur under the provis ions of this act but I 1 think there was much force in the suggestions of the Senator from ohio and I 1 wish they would have effect upon the senator from new jersey and others interested in the passage of this bill considering the peculiar condition of amm aff mairs affairs of this people that the law necessarily is but for a time because this region now a terri territory tory will probably become by the influx i of people a state and when it Is a state these of fences against domestic affairs will necessarily pass under the ent control rol roi of state law and the united states will be absolved from all care of such of fences if such there should then be I 1 ask whether it would not tend to a more careful and wiser and more conservative and merciful administration of the powers given under this act if f the judges who impose these beav heavy y pen altieci knew that thele was a court capable of revising C errors which they mg might h t commit it the mere pride of 1 profession prof r of es esslen essien s coma ln the simple question of the tue d doubt 0 ab t of b being ing overruled is a restraint our theory is to have restraints cheeks checks and balances upon power whether judicial or oth otherwise erwi se and they form one great part of the philosophy of our system and why I 1 ask may not that well be applied to this ad act I 1 do not think there can be any capital cases under this act and I 1 am sure the senator from new jersey would desire to see the judgments of this court exercised under a sense of responsibility a s ability and restrained power which certainly would be more effective if they knew that their thel judgments were capable of revision and of being passed upon in the event of error nay more than that there is as I 1 have said a very avery peculiar condition of ann aff affairs hIrs birs of sentiment in that at country in which what may seem to us law may not be to them justice and equity your punishments after all if they are to be effective are not to be administered in the spirit orv of vengeance enge ance anee but forthe for the purposes of inhibition and example human punishments can nave have no sanction except they are simply for example they have no sanction if they are for purposes of vengeance alone therefore surely it is better in the anomalous condition of affairs for which you are proposing wisely or perhaps not wisely at this time positively to legislate that you should at least least impose some limitation upon the high Z penal powers given by your law to a j judiciary ciary clary not the choice cholee of the people of the territory in whose selection they have no voice remember it is not like the judiciary of a state in whose selection the people have a choice but it is the tiie selection of judges to sit in judgment over the highest rights of person and property and those who are to be affects by them have no power in la the selection of those who are to judge them it is not like the case of new jersey or delaware we need no writ of error there because there is a question of choice but I 1 submit in all the these so matters which you are now confiding to a federal tribunal matters of life and death protecting the person and property of the citizen the general police regulation is con eon confided aided to the state and state tribunals alane alone can zant ZInt entertain ertain these thes e questions I 1 and state tribunals are selected by the people of the state who have havea a voice arthe choice of those who welo shall judge them I 1 I 1 but now you are dealing with ith a territory you are making laws to be executed by a class of magistrates in whose choice cholee the people have no volee voice whatever and Is isi it not wise and just in tle the the peculiar condition of strangely varl vari variant nt sentiment in which you xou nind find this population you shall shail impress upon your judges the fact that when they do administer law there shall be a tribunal to sit in error upon the defects which they may create I 1 submit that this is not a parallel to the case of a state it is not para parallel liei to the tile case of a people who baro bare re to be judg edby judges of their own choice checks and balances upon judgments are wise for the judgment of men is frail it should be carefully exercised and there never was a condition of affairs in this country or perhaps in any other when blow slow judgment and careful consideration were more necessary for the peculiar class of of lenses offenses which this thia bill is intended to punish they ar arg not evil in themselves they are simply evil because causey oer oar statute prohibits them you create the of lense you created the judge you give the the people to be affected no power to choose their judge and therefore I 1 say it behooves you that you should give every chance for a revision of an inaccurate or an unjust sentence mr air thurman A few words worm in reply to the senator from ne new w jersey the senator benator says that elsewhere there is no appeal by way of writ of error to the supreme court that is true truie sir and I 1 think it is a disgrace to our laws that it is so upon any property question arising under the constitution and laws of the united states where the amount of property involved is of the value of 2000 or more the cause may be taken to the supreme court of the united states for decision cialoni but upon the sentence of one single man A a district judge u dge oge of the I 1 united states whom t the e senator from new jersey would not employ if he were at thabar the bar to collect a note and there are such in this republic a man may be sentenced to death and there is no opportunity port unity to review that decision mr sherman the inquiry I 1 make of my colleague if ir he will allow me is whether in the territories there is not a writ df of error always from the i judge who presides at the trial to the supreme court of the tild territory mr air thurn thurman dan oh yes to the supreme court of the territory but how is that supreme court constituted mr air sherman then it must require three judges to concur in the sentence mr air thurman how is that supreme court constituted the district courts are held by the members of the supreme court A sin le judge of the supreme court field lold loid a district court but again the senator fro orom from m new jersey says that these judges a are re nominated by the president and con cou confirmed firmed by the senate ay sir they are but does not the senator know full well for he belongs to judiciary the committee the troubie trouble we have had to obtain men fit to hold hoid judicial station not simply in the territories but in the states does he not know what difficulty we have had at this thi s very session to determine who should bea ben be a judge in utah territory I 1 can speak no more plainly because I 1 cannot speak of our proceedings in in executive session butwill but alii will eill he tell me that the fact that the judge is nominated b by y the president and confirmed by the senate is any sufficient guarantee that there will be no error in his decision no sir that will not do again ilc lic heays says there is danger of overloading the supreme court of the united states sir if we are to protect that court from having excess of business we had better begin at some somo other end of its calendar we had better curtail its jurisdiction somewhat in civil causes in order that it may have time to decide the criminal cases that ought properly to be brought before it it I 1 have in my mind now some laws that have been enacted by congress the proceedings under which deserve to be considered by the supreme court af the united states and ought to bavo have been reviewed vie wed by that court but of which you give to that court the court of last resort to decide upon the highest constitutional questions in ill the land no jurisdiction whatsoever scover but sir I 1 do not propose aw t to go into a general review of the I 1 law on this subject on this bill and agid correct the defects that I 1 consider to exist in it forthie por for the tho reasons stated by my friend from delav Delai delaware eare yare peculiar to this case I 1 ask that in this case there may be this appeal to th the 0 supreme court although I 1 should very much like to see when there pastime was waa time to take it up and prepare a proper code on the sub subject dept jept the judiciary committee report to the senate a proper bill allowing a writ of error from the supreme court of the united states in certain criminal cases not simply to the su preme court of utah but to every i federal tribunal that has criminal jurisdiction throughout the whole length and breadth of the republic I 1 propose no nothing thing of that kind now I 1 propose simply to deal with the matter that lff iff now before us and for the peculiar reasons mentioned by my friend from delaware I 1 hope the senate maybe may be disposed to allow this appeal to exist mr air carpenter mr president I 1 entirely concur with the senator from ohio and the senator from delaware upon the particular subject that they have discussed it I 1 tle tie Is as the senator from ohio has well said bald a shame that a man can be tried for his life IL a district court of the united a before a single judge and have no writ of error to auy other tribunal A district judge may be the best man mark in the world hes lot expected to be the greatest man in the world you yoa shut abut the door upon superior professional attainments wh when en you fix the salary at or and then when we come here and ask you to increase the salary you say eay oh that will not do 1 these di judges do not amount to anything 11 they will never make very great men while good lawyers can make and a year at their profession and you pay I 1 only lor the services of a district judge and yet in every state of this union ulen luen may be tried for violation of federal law and sentenced to death by the determination mi nation of one such judge if you punish offenses you mut must give the federal machinery tor for trw and you disregard your duty duly when you do not give all the saie sate safeguards guards |