The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1895-01-16
ATTORNEY GEORGE SUTHERLAND.
The Selection, Tenure and Compen-
satiOn Of the Judiciary.

I AS Se1ecslOnJ tenure ana COrnpeh-
satiOn Of the Judiciary.
Attorney George Sutherland read a
thoughtful and able paper on the Sc
lection, tenure and compensation of
Hhe Judiciary.
Mr.. Sutherland said in part: With
out an honest, capable and fndepen-
dent Judiciary. no state can long
! maintain its dignity nor respectable
Ity among the people OF the earth. In
bne sense, the Judiciary is the weakest
| OF the three departments OF govern
ment, inasmuch as it must depend up
| on The legislative branch for much OF
its power to adjudge and upon the
executive for all its power TO render
Its judgments effecUIal. In another
and a broader sense, however, 1T IS
and should be the strongest. 1t stands
as a Shled to prevent the exercise OF
| oppressive and arbitrary power on the
part of the government itself, whose
creature it is, against the CITIZEN
though never SO humble or insfgnif1-
CANT. Its duty is TO protect society
against The Individual who attempts
1 to Interfere with its peace and good
order, but at the same time to be no
less fearless and independent TO pro-
tect the Individual against the unjust
demands of society. The highest en-
coniu1n which can be paid TO any
| Judge, Us that in the discharge OF his
duties he needs no voice but THAT OF
the law and the justice of the cause.
The first question discussed in THE
paper was how TO select THE judges.
The reasons advanced in favor of an
| elective Judiciary are more sentiment
tai than substantial. It is said that
/ this is a government of the people, and
that the people should say who shall
represent them in THE department of
| justice. The difficulty is, that con-
ceding this to be true as a Theoretical
proposition, in actual practice it is
! not so often THE people who say who
shall constitute. the courts as 1T is one
or the other of the political parties
and men are put into Judicial posi-
TONS not because of their learning or
ability, but oftener because of Their
ATTITUDE on political issues wholly ir-
relevant Ito their judicial duties. The
objections to be urged against the
election of judges of our courts do not
perhaps apply to the election of any
other officers. 1 believe as intensely
as anyone in the right of the people
90 say who shall be their representa-
lives in all branches of the public SER
vice. Every other official is practic-
ALLY the mouthpiece of the people. A
popular government is necessarily a
government of the majority. What
the majority says may not always be
ilSlhlJ DQI 4Oi lilS Well DSllS OIL all
| 1t must he assumed Ito be so. lit is
right that a majority of the people
should name their governors, legisla-
tors and executive officers, because
the people know best and should say
whom they wish to voice their Senti-
merits. Such officers represent and
speak for the people. In making laws,
IN spending public moneys and dis
charging like duties they are governed
4 q mai ~ no
people. The Judiciary stands upon
wholly different ground. They voice
Fulo policy, speak for no political Vpartty
or Faction and discharge the behests
of no majority. Their duty lis simply
TO declare and apply the law. In do
ing so it often becomes their sworn
and solemn duty To disregard the
wishes and sentiments of a, rnajorfTy
! of the people and declare in favor of
the position Of a Single Individual as
against every other citizen of the
| commonwealth, so that reduced ito the
| last analysis a judge is not, truly
| speaking, g representative officer at all,
and the reasons which apply with so
much cogency in favor of the repre-
sentative officer being elected by those
whom The represents, apply to the jul
dietary TO a. very limited extent if at
all. 10 put a. man ON the bench who
looks ITO popular OF party favor for
reelection, destroys to a. large ex-
tent his independence. 1t win be re-
membered that the unfortunate gen
tleman who purchased the Roman
Empire from the Fraetonian guard
died a violent and ignomiuious death
with the advice and consent of the
g1antors whereof after a precarious
possession of about sixty days, a con-
dltion which rnhappily does not fol-
low the purchase of judicial office in
our less favored land. 1t is not at
all uncommon in the larger cities like
| New York and st. Louis, for a judge
to pay thousands of dollars for judi
cial prefe1u1ent under the guise of
campaign contributions.
The election Of Judges is a thing
practically unknown outside the Uni
ted States. IN nearly every civilized
country today, the judges are APP
| pointed. This system prevailed in the
early HISTORY Of OUT country 1t will
J not be seriously contended that the
! judges who have been elected TO the
! bench in the state of New York will
at all compare in learning with their
predecessors under tine appointive sys-
TEN, Bronson, Nelson, Cowan, Wal
worth and the illustri0us Kent, Who
made the early reports OF that state
| one classics of the American law. II
is true that many good judges
nave been elected, but the fact that
there have been 50 many bad ones due
to this method Of selection should con-
denim 1T if a better method exists. The
appointive system has prevailed in
Massachusetts from its earliest his
| tory to the present day with tle re-
silt that that commonwealth has has
and has today, all things considered,
perhaps the strongest and ablest Judi
GARY Of any state in the Union It is
the system which prevails in England
and has given England a judiciary
which is the chief glory of that land.
Under it the judiciary has, ito a large
politics. That the appointive system is
not perfect [ am ready to concede, but
| that it is better than the elective sys-
, tenn, both reason and experience have
clearly demonstrated.
Mr.. Sutherland held that the tenure
of the visi pruis judges should be NOT
shorter than ten years, while that OF
The appellate judges should be longer
that the best plan is that which OBJ
tains under the federal government
in England and in several of the states
| of appointing the judges for life OIL
| during good behavior. In that case
the right should be reserved to the
| legislature to remove any judge by a
two-thir15 vote.
AS to compensation, the Judges
should receive at least $1,000 per an
num-
1t is notoriousiy true that In the
states where very small salaries are
paid that the best fitted members OF
the profession cannot or Will not af-
ford to accept the judgeship. and The
result is that men preside over the
highest courts and adjUdlcate vast
property rights and pass upon ques-
tions of life and death who by reason
of their lack of learning and ability
were failures. at the bar. To pay good
salaries to our. Judges is the very high
est measure OF economy.
.JuDGpI III. w. SMITH.