Green-Mountain freeman. [volume] (Montpelier, Vt.) 1844-1884, 1855-06-21

book, how shall the judge decide when the book
of thousand years afford no guide to his judg
ment But decide he must, and here, with in
tegrty, lies the great test of judicial excellence
When heterogeneous mass of facts. with al
their variety Of shades have eliminated to o line
on one side of which must rest the rule OF right
and to most mind uncertain which the side
then must stand out in bold relief that priceless
jewel, under n government of laws, good Judge
And hero, by minds that see only the surface o
things, may be the standard for Judicial hgisia'
ton, when the penetrating will discover thai
the decision is but the increment which mus
follow the principles already decided, as thu
wonderful mind of Newton developed the law o.
grayitation, as tho necessary consequence of thu
laws by which it was surrounded.
Judicial legislton, therefore, of which we
may and ought to complain, is the arbitrary
manufacture of law by which within, caprice, OF
partially may control given cause, reversing
the legitimate and necessary result of established
principles. But worst of all, and most to be de-
plored, is the reversal by court of its own de-
csions, especially when those decisions have
been formed with due deliberation, under the
arguments of able counsel the effect of which
is, that when party enters court, with the I'D
vice Q his counsel, he has, as he may well sup
pose, settled and established rights. But when
he leaves the judicial forum, he learns with ach-
ing heart that he has one,--bccause the court,
in the meantime, have changed the law.
The reaaon why courts should not make laws,
is pot only because they are appointed as ex-
posnders, TO declare what the llw now iis, but
because they have no power to preserve the
good, while destroying the evil. When they as
sumo the powers of leg islation, they are like
war-elephants, and trample down existing rights
when aiming only at existing wrongs; whereas
legislators can make prospective laws and by
provisos protect existing rights while prohibit
ing the wrong, and thus cause reason, justice and
law to move on in harmonious union, for the
common benefit of a progressive people; and
hence the wisdom, in all our constitutions, in
separating the legislative from the judicial power
There is another topic, relative to our courts
and their appendages, of great and imposing
magnitude, to which would call your atten-
ton, and one in which it may be in you,
power to cause marked improvement. 1t is
the administration of criminal justice, and the
powers and duties of our State sattorneys. Had
the earning Of Dartmouth asserted that moral
ity, public and private virtue, and true and vital
piety were on the wane, should have mourn
ingly acquicsced in its decision, and with the
exclamation, " Hinc lille lachryme," (herewe 20
with tears.) That Vermont. and in fact all the
States, have little of that heightened morality,
that Accommodating piety, and that unset
fish regard for right, or that noble and glowing
patriotism which so gloriously marked the his
tory of our revolutionary fathers none will deny
Where now could you find such men as the cap
tors of Major Audre-men who, although COM
mon soldiers, were above all price1 Bought then
could not be; while now it is unbushingly pro-
claimed that every man has his price that +" ia
the victors belong the spois, 'and that spols are
the hot-bed, in which to plant the seeds of mod
ern patriotism, The Almighty Dollar rules
the hour. The merchant in Wall street declines
tsjpin the Church, from the fear that it will
not pay. We are making an alarming descen,
from high morality by taking money for crime
in our acquiescence in the forfeiture and pay
ment of bonds given for gross offences, as sub
stitute for the corporeal penalties of the law.
But waive all this, as beyond, perhaps, your
constitutional powers. Still must advert to
the fact, as most disastrous in all its tendencies.
The idea that monstrous .telon may pay money
for his crime, and then be permitted to walk
abroad as before in a State whose most sacred
laws he has grossly violated, and among peo-
pie whose dearest rights he has so foully spurn-
ed, is scarcely less tolerable than the selling of
indulgences by that imperial and despotic
church, whose Remembering acts and hcllish
cruelties aroused the mighty spirit of Luther,
and brought on the Reformation. In fact, where
is the difference between selling the right to
commit crime, and the taking of money for
having committed it, in the payment of bondsl
In all civilized governments there is to be
found an officer whose duty it is to prosecute
offences against the criminal code In our State
! we have fourteen, one to each county, called
States Attorneys. ask you if it would not
be better to reduce that number to four-one for
each judicial district--and let them have sal.
AIRY TO be fixed by legislative enactment, but suf-
ficicntly large to call out the legal talent of the
State. This would give character, dignity and
responsibility to the Office. Let them be elected
by the people, and follow the courts, in their
respective districts, aud do all the duties which
are now so carelessly, ncgligcntly, ignorantly
and nnskillfully, and, in too many instances,
dishonesty and corruptly, attempted to be per-
formed by our various States ATTORNEYS, and
among their other duties, lot them alternately
attend the sessions Of the Legislature, and ex-
anime and argue those questions in which the
State and people are interested. Had VIC had
such az officer at the Capitol year before last,
when powerful corporations united their varied
interests and extended their Briareaa hands
against the interests Of individual citizens, then
those citizens might not have been compelled to
sustain the common veal by individual sacrifice
Under this regime, think you one of the most
common, infamous and dangerous crimes known
to the law would walk abroad at MONDAY un-
scathtd of justice. The violation of that high
and holy command, "Thou shalt not bear false
witness against thy neighbour" which was ush-
cred forth to the world amid the thunderings of
Sinai is of almost daily occurrence p,r;rrr