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

| Your committee 10 avoid any possible misap-
prehension, beg leave 20 say that they do not in
tend this report shall be regarded as am assault
| upon the system OF town representation Though
that system is copied from the old English bor-
ough system, and the representation is OF eommu-
mites composed OF populations Of unequal num-
bers, and does not represent the equal voice of
the people, as already seen yet il stands at pres
ent upon dcienslhle reasons growing out Of tradi-
ditQml usage local town pride, unifcatiOn Of
the interests Of the people inhabitug the same
town, and having corporate interests demanding
legislative protection or encouragement But
! the point we are making is, that while this mode
OF representation, for the reasons given is deleu-
sihle IN respect TO the power OF the legislature to
make the laws 10 is wholly indeensible, being
unequal and c0uuptng in respect to its power
tn create The judges who shall .it iu Judgment
upon the laws made by body go constituted It
| ~ clear 20 the apprehension Of your committee,
that the true way % keep the One-half of the
towns, having the largest relative population,
satisfied with the present system Of representa-
tion-that is the giving the half Of the towns,
having the minority of the population, noyerthe-
less, an equal voice with the larger towns, having
vast majority OF the population, in the legisa-
tion OF the State, lis the graceful relinquishment
by the smaller towns, Of a right 20 a like control
ling voice in the election Of the Judges who are
70 sit in Judgment, not only in all cases affecting
the people at large and individually, but also upon
/ the laws enacted by the minority Of the people
Should the small towns. therefore, show a dispo-
sit0n to grisp aud hold on to this double power
of making the laws and of interpreting them like
wise over the heads and against the clear natural
rights of the majority it would, in the opinion
OF your committee create in the minds of the ma
ljority such sense Of wrong and injustice, that
at last both the b1rough $ stem Of representation
and its power of appointment. will be swept away
before the rising and irreprcssibIe Indignation Of
the people at the manifest wrong. On the other
hand, with this concession made, thus giving the
people an equal voice ia the election of the officers
Of one coordinate department Of the government
Of which they are now deprived, the town system
OF representation may remain undsturbed for
years to come, and until the population Of the
towns shall become very unequal as 10 lead
TO universal conviction that justice demands
change.
For the reasons herein before set forth. and
others OF minor importance, not necessary to al
ude to IN this report, your committee unani-
mousy OF the opinion that the Constitution
should be so amended as to provide for the ap-
pointment OF the judges of the Supreme Court
by the Governor, by and with the advice and con-
sent of the senate
,. The second condition to be secured, depend
ing for It's accomplishment upon the method Of
filling these high judicial offices, namely, the ex-
altatlon OF the bench above the reach Of the de-
moalixlng influences which attend upon periods
OF partlAn strife, and influences of q Kindred
sort, has already been sufficiently considered in
the discussion Of the mode Of appointment It
is the judgment Of your committee that this de-
siruble end will be attained by adopting the mode
recommended
B. The third condition, that of pernauency Of
Official tenure, remains for brief consideration
la the judgment of your committee the office
should be in some degree permanent. The indie
pendence of the judges is essential to the fearless
discharge OF their duty, and can be secured in no
other way. la the language Of Chancellor Kent
" 1t Is salutAry in protecting the Constitution
and laws from the encrOachments and tyranny Of
wi
are frequently the object Of temporary aversion,
and sometimes OF popular resistance 1t is re-
qulsite that the courts Of justice should he able.
at all times, TO present determined counteuance
against all icentiDus acts and to deal impartial
" and truly, according to law, between suitOrs
OF every description, or whether the cause, the
question, or party, be popular, or unpopular. To
give the Ermness and the courage to do it, the
Judges ought to be confident Of the security Of
their station. Nor is an Independent Judiciary
less useful as check upon the legislative power,
which IS sometimes disposed, from the force of
passion or the temptations of interest, to make
sacrifice Of constitutional rights and it is IA wise
and necessary principle OF our government that
legislative acts are subject to the severe scrutiny
and impartial Interpretation of the courts of JUS
tice, who are bound to regard the Constitution as
the paramount law, and the highest endeayor of
the will Of the people, Upon this subject your
committee would call the attention of the Coun-
cll 10 an article OF great force and cearness con-
tained in the Federulist. We find room in this
report for only single extract "There is yet
further and weighty reason for the permanency
Of Judicial Offices, which sdeducble from the ma
ture of the qualifications they require II has
been frequently remarked with great propriety
that yoluminous code Of laws is one of the in
cOnveniencies necessarily connected with the ad-
yantages Of free government 10 avoid an ar
bitrary discretion in the courts, it is indspensa-
ble that they should be bound down by strict
rules and precedents, which serve 10 define and
point out their duty in every particular case that
comes before them And it will readily be con-
ceiyed, from the variety of controversies which
grow ont Of the folly and wickedness of mankind,
that the records of those precedents must un-
ayoldaby swell to very considerable bulk, and
must demand long and laborous study 10 acquire
a competent knowledge Of them. Hence it is that
there can be but few men in the society, who will
have sufficient skill in the laws to qualify them
for the station of Judges And making the pro-
per deductions for the ordinary deprRvity Of hui
man nature, the number must be still smaller Of
those who unite the requisite integrity with the
requisite knowledge. These considerations APP
prise US that the government can have no great
option between tit characters and that a tenn
pOrary duration in Office, which would naturally
discourage such characters from quitting ucm-
tive line of practice 10 accept seat on the bench,
would have a tendency to throw the administra-
ton Of justice into hands less able and less quail
fled TO conduct it with ability and dignity"
Every line of the foregoing extract from the
Eederaist, the production Of the n,of John Jay,
who afterwards made the bench of the Supreme
Court of the United States forever illustrious by
his occupancy of it as Chief Justice, is as appli-
cable to our State as toany other and it has
been denied or called in question hy any jurist or
statesman, worthy Of the name, who was either
contempOaneous with, or has succeeded him.
Fully cOncurring in these views, your commit
tee have adopted them as guide in fixing upon
the tenure OF Office Of the judge of the Supreme
Court. But your committee have not thought
best to recommend that the tenure should be for
life, as is the case in respect 10 the Federal Judi
cary, They are Of the opinion that shorter
period will best meet our peculiar condition, and
best accord with the prevailing Judgment Of our
people Your committee recommend the period
of six years as being the proper mean. And that
the appointments shall be 50 made, as that the
terms OF two Of the judges shall expire in every
alternate year, in the event that a provision for
biennial sessions Of the Legislature shall be
adopted, or one in every year il not adopted.
4. Closely connected with this branch If the
subject IS the question of compensation. Your
committee think il proper 10 recommend that the
Constitution be so amended rs 10 provide that
the judges OF the supreme Court shall, at stated
times, receive for their services reasonable COM
pensation, which shall not be diminished during
their continuance in Office, The reason for which
is thus, in substance succlncty stated in the
article in the fedemlist, before referred to +" In
the general course of human nature, power over
man = substance amounts 10 u power over his
will And one can never hope to see realized in
practice the complete separation of the judicial
from the legislative power, in any system which
leaves the dependent for pecunary resource
on the occasional grants of the latter The en-
lightened friends Of good government in every
state, have seen cause to lament the want of pre-
else and explicit precautions in the State COnsti
tutions on his head"
1t is not to be forgotten that judges are subject
TO the intirmities OF human nature, after being
placed upon the bench, the same as they were be-
fore An appointment 10 Office changes nothing
that is inherent in the nature Of human beings.
A judge ought TO be able TO treat the parties 10
cause, le they president or beggars, with the
same indifference with respect to being influenced
by them, that the mathematician does the alge-
brac signs with which he works out his problem.
But we have no reason TO suppose that judges
will be altogether uninhuenced, undor the elective
system, by the Consciousness that they may be
dependent for reelection upon the caprice Of
men to be humored, upon partiality bestowed en-