Ruminations
formation? Though it may be true, that
a jury would ordinarily follow the advice of the judge, and treat it, practically, as binding as a direction would
be upon them, yet the danger would
be in exciting trials, and where the law,
which the government were attempting to enforce, was deemed unpopular. A jealousy of leaving the law to the
court, in criminal trials, as in other cases, is, in the present state of things, the
merest declamation. Our judges are
dependent upon the people, and the
very tendency of an elective judiciary is
towards the popularity of the day.
Considering, then, as I do, that the
doctrine, now established by this court,
is opposed to the current of adjudged
cases in England and in this country,
and to constitutional principles, and
in violation of the harmony of the legal system, and unfit in the nature of
things, and in no way necessary for the
preservation of the liberty of the citizen and the protection of innocence
and the wholesome administration of
criminal justice, and especially unnecessary in a government, where there
is an elective judiciary, like the one in
this state, the tendency of which is towards popular feeling, I have not been
able to bring my mind to concur with
my brethren.35
Hall’s ruling stood for another forty-three
years, before being reversed by State v.
Burpee (1892). Bennett’s dissent then became the majority rule in Vermont.36
Compared to Now
The small number of dissents in the early years, compared to the