Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1869-08-18
COUNCIL OF CENSORS.

REroRr on SPECIAL COMMITTEE TO THE COUNcIL OF
CENsoRs, JutY 81, 1869

The committee appointed TO inquire into the
expediency of go amending the Constitution as to
enlarge the term Of office of Judges of the Su-
prcme Court, and TO fix their salaries and also To
inquire into the expediency Of changing the mode
Of their election have had the subject under CON
sideratl0n, and ask leave to submit the following
report
Under the admirable working Of the govern
ment devised 10y our iorcathcrs, experience has
shown that It's functions were wisely allotted IN
three departments the Legislative, the Execu-
tive, and the Judiciary each acting indcpend-
emily OF the others in its particular sphere except
only as there exists iuter-depcndence essential
/ 90 the Conference and unity of the whole
! Three important things arc essential 10 the
proper and efficient discharge of the duties dis
tributed TO the judiciary department These are,
superior intellectual abilities. eminent learning
and moml purity in the Judges 3D. Their exal-
tati1n above the reach Of the demomlizinR innuen-
ces which attend upon periods Of partisan STRIFE
and which are an inherent evil in all popular gov
ernmcns 3D.. Mr.. Justice Story the udiciary
Sc must possess wisdom, learning, integrity, indie
pcndencc, hrmness ' or, as stated in the i0rcihe
| language OF Mr.. Burke, in his Reflections on the
! French Revolution w Whatever is supreme in
state ought 70 have, as much az possible its iu-
dteial authority 50 constituted not only 10 de-
! pend upon It, but in some sort 10 balance it, II
ought 10 give security to it, justice against its
power. 1t ought 10 make its iudicature, AS it
We're, something exterior TO the State 4" a doc
trine which, Justice Story remarks, Every re-
public should steadily sustain and conscIentiously
! inculcate"
by what means this is to be accomplished. is
| the question to be solved. 1t depends upon the
mode of appointment, the tenure Of Office the
/ compensation Of the Judges and the distribution
Of the jurisdiction confded to the department
in its various branches, in properly constituted
courts.
l. As to the mode Of appointment
| The Constitution Of the United States provides
that the judges of the Federal Courts shall be ap-
| pointed by the President, by and with the advice
and consent of the Senate This provision was
adopted by the wise trainers of that instrument
upon very grave and thorough deliberation. And
no proposal OF amendment in that respect has ever
/ been made or even suggested, to the knowledge
/ OF your committee, since the foundation of the
government. On the contrary, its wisdom has
been universally recognized And most of the
states of the Union have, with more or less exact
ness, followed the example of the parent Consti-
tuition in this particular.
/ The advantages Of this mode of appointment,
as being peculiarly fit and proper in respect to
the judiciary department, are thus clearly stated
/ by Chancellor Kent - The just and vigorous
Investigation and punishment of every species of
fraud and violence, and the exercise Of the power
OF compelling every man to the punctual perform
anCe OF has contracts are grave duties not of the
most popular character, though the faithful dis
charge OF them will most certainly command the
Ndllu hIllIDbuLl1n OF tIe luuClOuS observer. Ilp
| httest men would probably have too much ro-
seyedness Of manners and severity of morals 10
secure an election, resting on universal suffrage
] Nor can the mode of appointment by large de-
Lucrative assembly be entitled to unqualified ap-
probation. There are too many occasions and
too much temptation for intrigue party preiu-
dice and local interests, to permit such Il body
/ OF men to act, in respect to such appointments
with sufficiently single and steady regard for
I the general welfare And Chancellor Kent in
his Commentaries, speaks Of experiments pre-
vious to the time OF his writing, in some of the
States of electing the judges by popular assem-
| bly,, as having been unsatisfactory in their re-
suits And it is matter Of general knowledge
that the experiment of popular elections of these
officers in some of the States at the present time
as in New York and Pennsylvania, has tended to
the Generalization, in some striking instances, of
| the bench and the courts. And the recent con-
vention of the State Of New York has proposed
an amendment to the constitution providing for
the appointment Of the judges by the Governor
| by and with the advice and consent of the Senate
after having once abandoned that mode for the
elective system, and seen its failure conspicu-
ously illustrated
! It's doubtless true that the iealously. which
has been manifest in some degreee in a portion of
the people Of this country, of placing the power
to appoint the judges in the Executive, and a Sc
| lect advisory body Of wise men, had its origin in
the well-known fact of history that for centuries
I y
Sovereign, and We're in many instances the yilest
and most abandoned creatures Of his caprce and
will, in upholding unconstitutional cncroach-
ments upon the rights of the subject people as
illustrated in the life of the notorious Jetires.
But our iOrelnthers in framing the Constitution
under which we live, did not fail to perceive that
the theory Of our system of government is the
very opposite Of that Of Great Britain. While
they preserved in the frame of our government
some OF the principles and even modes of the lat
ter, they nevertheless knew that while under the
| British Constitution all sovereignty resides in
the King, the very reverse is true as to the gov
ernment erected for America. The American
idea being that the people are sovereign, and that
while all supreme human power is lodged in the
people, the ruler, for the time being, is nothing
but their servant. Under government there
fore, established upon such theory, there could |
no longer exist any cause for apprehension that |
the Judges, though appointed by the Executive, |
would be the creatures rather of his will and ca
price, than the faithful servants Of the people in
whom all sovereignty reposes, and whose creature
the Executive is, as fully as are the judges them
selves And this reasoning brought them to the |
conclusion that while no evil results need be ap
pretended from repJsing the appointing power of |
the judges in the Executive and Senate, as there
might be under the British system of government !
the whole value of that manner of appointment |
in securing in the judges that cluster of shining
qualifications enumerated by Chancellor Kent |
wisdom, learning, integrity, Independence and |
irmness, remained intact and unimpared by any |
apprehended encroachments of a sovereign ruler. |
1t is doubtless true that the early settlers of
Vermont, who framed the original constitution of |
the State owing to reasons peculiar to their situa
tion and trials encroached upon as they were |
not only by the parent government across the sea
in common with all the other col0nists but also |
by neighboring state, imbbed the democratic |
idea more fully, and carried it 10 n greater extent
in all the details Of governmental provision than |
tho ppoplp pi other A. and tlia ia da,bt-
less the explanation Of the adoption by them Of
the mode Of electing judges il now exists in |
stead of following the wiser method adopted By |
the great and patriotic men who framed the Fed |
eral Constitution, and who loved liberty no less |
than did the hardy pioneers of our State, and |
were no less jealous Of all possible encroachments
upon it,
And il is obvious to remark that while the
method Of electing judges by popular assemblies |
and by universal suffrage has worked dsistrously |
in other states that have tried those methods, the
State Of Vermont has hitherto in the main, though
with some exceptions, been singularly exempt |
from the consequences which the experience of |
other states might have led us 10 apprehend.- |
But this exemption is owing not 80 much TO the /
wisdom of the mode Of election as a general rule, |
as to circumstances which have been strikingly |
peculiar Of Vermont, and not found in any other |
state. Those pecularities nhered IN the steady |
good sense, the industry, lrugality, simplicity in |
all the appointments Of domestic life, and the |
virtue and intelligence OF the whole mass Of the |
population, who were mainly emigrants from
among the most enterprising oitizeusof the older
New England States. But though these charac-
terstics have continued in a large measure TO
distinguish the inhabitants of the State, and
though we may point with pride TO the previous
working Of the present mode of electing judges,
and tO many ilustrious names Of those who have
adorned the bench, in the apprehension of your
committee the time has arrived in the growth of
the State in population and wealth. when we may
not expect TO be exempt from the evils which have
usually resulted in other states from the popular
election of the judges. Our population is not 20
homogeneous There is no reasonable prospect
that we shall be so distinguished as we have been
in the past, with the exception of one or two me-
morable instances for exemption from the bitter
ness which attends party stries. And what is
more there has been great change in the quiet
simplicity of the pursuits of the people. While
those pursuits are still mainly agricultural, vast
corporations have tTaversed the State from border
10 border with railroads, and capital is armed
with that power which comes from concentration,
and which, when thus welded, is all powerful in