Mr. BANTZ. I was entirely convinced as to his innocence.

Mr. WALDO. You think he had nothing to do with it?

Mr. BANTZ. Nothing whatever.

Mr. WALDO. Not only nothing to do with it, but that he had no knowledge of who was guilty?

Mr. BANTZ., Not for an instant.

The CHAIRMAN. Is there anything else that any Member desires to ask of the assistant treasurer? I think that we should let him share the responsibility of this committee. He is Assistant Treasurer of the United States, and I think I will ask him this question: Mr. Bantz, as Assistant Treasurer of the United States, do you think this committee would be justified in granting the relief asked for by the subtreasurer at Chicago, Mr. Boldenweck?

Mr. BANTZ. I think so; yes. That is my opinion about it.

Mr. SHACKLEFORD. How long had Mr. Boldenweck been in that office before this shortage was discovered?

Mr. BANTZ. Only a few months; not a year, I believe.

Mr. SHACKLEFORD. Did you make any investigation from which you could say how much of his personal attention he gave to his office?

Mr. BANTZ. No, sir.

Mr. SHACKLEFORD. Do you know how many days he was present and how many absent; how much of his time he devoted to his office?

Mr. BANTZ. No, sir; I could not tell you that. I know he was there all of the time I was there.

Mr. SHACKLEFORD. You were not there until after the shortage occurred? Mr. BANTZ. No, sir; I do not know anything about it before that.

This is substantially all of Mr. Bantz's testimony. We submit that he is not warranted in making any recommendation in this unfortunate affair, for the reason that he himself has clearly shown that he knows nothing about it.

The only other evidence is the testimony of Mr. Boldenweck himself. His personal appearance and manner of testifying before the committee indicated a man of good character, intelligence, business capacity, and business training. He testified very positively that he had not taken the money and had no guilty knowledge of who did; that he had devoted himself assiduously to his trust and done everything in his power to safeguard the money in his custody. He says he is entirely without blame. What else was it expected he would say? Is he to be relieved of his responsibility for $173,000 of the people's money on his own bald and unsupported asseveration that he is blameless? Had all of the other employees of that subtreasury been called before the committee, each of them in turn would have declared himself without fault as positively as did Mr. Boldenweck. Yet the fact remains that $173,000 was taken from that subtreasury by either Mr. Boldenweck or some of the employees.

There is just as much evidence against one as another, from Mr. Boldenweck down. This large sum of money suddenly disappeared. Where it went is wholly unexplained. Under the circumstances we believe it would be bad policy for Congress to so hastily give Mr. Boldenweck the relief he seeks. The courts at Chicago are yet to deal with the various phases of this shortage. These court proceedings may in some measure clear away the mystery which enshrouds this shortage. If Congress relieves Mr. Boldenweck from his liability at this time, it must be upon his own naked denial of guilt. To do this would be to establish a very dangerous precedent, one which would lead to increased criminality and great losses of public funds.

JURIES IN UNITED STATES COURTS.

FEBRUARY 3, 1909.-Referred to the House Calendar and ordered to be printed.

Mr. BRANTLEY, from the Committee on the Judiciary, submitted the

following

REPORT.

[To accompany H. R. 21589.]

The Committee on the Judiciary, having had under consideration the bill (H. R. 21589) to repeal section 802 of the Revised Statutes, and to provide for the return of jurors to serve in the courts of the United States, beg leave to report that said bill should be amended so as to read as follows:

A BILL To repeal section eight hundred and two of the Revised Statutes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section eight hundred and two of the Revised Statutes providing that "Jurors shall be returned from such part of the district from time to time as the court shall direct, so as to be most favorable to an impartial trial and so as not to incur an unnecessary expense or unduly to burden the citizens of any part of the district with such service" be, and the same is hereby, repealed.

And the committee recommend that said bill be so amended, and as so amended that the same do pass.

Section 802 of the Revised Statutes, which is set out in full in the foregoing bill, has been brought forward from the judiciary act of 1789, and whatever may have been the necessity for it at the time it was originally enacted, growing out of large districts, a sparsely settled country, and inadequate means of transportation, that necessity has ceased to exist. Furthermore, this section is in seeming conflict with later provisions of the law prescribing the manner of returning juries for all United States courts. The existence of these later statutes, coupled with the retention of section 802, has led to some confusion as to the power of the courts over the return of juries to serve in the courts, some of the courts claiming the power to return them from particular parts of the district and to exclude jurors from certain other particular parts of the district, while other courts decline to exercise any such power.

The sixth amendment to the Constitution provides, among other things, that

in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.

It is to be noted that the original Constitution required that "such trial shall be held in the State where the said crime shall have been committed," and that the addition of the words "and district," as found in the sixth amendment, shows the effort of the framers of the Constitution to conform as nearly as possible to the common-law principle of a trial by "a jury of the vicinage."

In Story on the Constitution, the author (vol. 2, p. 561) says, in discussing the sixth amendment:

But upon a subject so vital to the security of the citizen, it was fit to leave as little as possible to mere discretion.

Some questions must necessarily exist as to the constitutionality of section 802, because it appears to leave to mere discretion, in advance of a hearing or of any judicial determination, to say what is an impartial jury of the district, and can easily be construed to deny in toto the right of a trial by a jury of the vicinage, and as well can be made an instrument of oppression. Mr. Justice Brown, speaking for the court in Mattox v. United States (156 U. S., 243), says:

We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted, not as reaching out for new guaranties of the rights of the citizens, but as securing to every individual such as he already possessed as a British subject-such as his ancestors had inherited and defended since the days of Magna Charta.

If this be the true method of construing the sixth amendment to the Constitution, and we accept as correct Judge Story's statement (vol. 2, p. 561, of his work on the Constitution) that "by the common law the trial of all crimes is required to be in the county where they are committed. Nay, it originally carried its jealousy still further and required that the jury itself should come from the vicinage of the place where the crime was alleged to be committed," then there does not appear to be any constitutional warrant for section 802. In one of the earliest reported cases, Hartshorne's Lessee v. Patton (2 Dallas, 252), it appeared that the case had been tried repeatedly in the city of Philadelphia, but the jury could not in any instance agree upon a verdict, whereupon it was suggested that in order to obtain a jury whose minds were unbiased by reports, discussions, conversations, etc., the sheriff should be directed to return a panel from the county exclusive of the city. The court said, "Can we direct the sheriff to take a jury from any particular part of a county? Surely not."

There is another thought in connection with the suggested unconstitutionality of section 802. In Judge Story's work on the Constitution, already quoted from, it is stated (vol. 2, p. 559) that "the great object of a trial by jury in criminal cases is to guard against a spirit of oppression and tyranny on the part of rulers and against a spirit of violence and vindictiveness on the part of the people." In our country, while theoretically the people are the rulers, the actual ruler is the Government acting through the courts. It is only through the courts that the citizen knows and is made to feel the power of the Government. Can the great object of a trial by jury be attained, and an impartial jury be guaranteed, when the "rulers" against whose

oppression and tyranny a trial by jury was in part aimed are given discretion to say, not judicially, but arbitrarily, from what portion or part of a district a jury shall be returned? The right of trial by an impartial jury is too sacred to be left to mere discretion and should be guaranteed by fixed rules of law.

Following the enactment of section 802 the necessity for such rules of law was recognized and statutes were enacted and are now of force regulating the manner of returning juries for all United States courts, and these statutes, if they do not impliedly repeal section 802, at least make its retention no longer desirable. The acts of 1840 and 1879, now found in section 800 of the Revised Statutes, provide full and complete rules for the returning of all juries. The act of 1840 makes the law of the State as to qualifications, etc., applicable, and says that juries in the United States courts "shall be designated by ballot, lot, or otherwise, according to the mode of forming juries then practiced in such state court as far as such may be practicable by the courts of the United States or the officers thereof." This act further provides that "for this purpose the said courts may, by rule or order, conform the designation and impaneling of juries in substance to the laws and usages relating to jurors in the state courts from time to time in force in such State."

The act of 1879 is more direct and specific, and provides a distinct method of returning juries. This act provides for a commission to prepare a jury box to contain 300 names, and says "all juries to serve in courts after the passage of this act shall be drawn in conformity herewith." It further provides that "nothing herein contained shall be construed to prevent any judge from ordering the names of jurors to be drawn from the boxes used by the state authorities in selecting jurors in the highest courts of the State." If this act of 1879 be mandatory and not merely directory, it would seem to follow that all juries to serve in the courts of the United States, being required to be drawn in conformity with it, can not be drawn from particular parts of the district in the discretion of the judge, as is authorized in section 802, without doing violence to at least the spirit of the act.

In the case of Pointer v. United States (151 U. S., 408) Mr. Justice Harlan, for the court, said that in the absence of a rule or order making the state laws applicable as authorized by the act of 1840

the mode of designating and impaneling jurors for the trial of cases in the courts of the United States is within the control of those courts, subject only to the restrictions Congress has prescribed, and also to such limitations as are recognized by the settled principles of criminal law to be essential in securing impartial juries for the trial of offenses.

There is clearly set forth here two limitations on the power of the court the one prescribed by Congress that the names shall be drawn from a box, and the other by the settled principles of criminal law, one of which is, as has been brought down by the common law, that there shall be a jury of the vicinage.

In Lewis v. United States (146 U. S. 370) the court said:

While we do not feel called upon to make suggestions as to the proper practice to be adopted by the circuit courts in impaneling juries in criminal cases, yet obviously all rules of practice must necessarily be adapted to secure the rights of the accused; that is, where there is no statute the practice must not conflict with or abridge the right as it exists at common law.