The Romans, therefore, had less need than
we of a permanent judiciary to counteract the disintegrating tendency of
redundant legislation; _a fortiori_, of course, they had still less to
isolate the judiciary from political onslaughts which might cause
justice to become a series of exceptions to general principles, rather
than a code of unvarying rules.
It is precisely because they are, and are intended to be, arenas of
political combat, that legislatures cannot be trustworthy courts, and it
was because this fact was notorious that the founders of this government
tried to separate the legislative from the judicial function, and to
make this separation the foundation of the new republic. They failed, as
I conceive, not because they made their legislatures courts, but
because, under the system they devised, their courts have become
legislatures. A disease, perhaps, the more insidious of the two.
Insidious because it undermines, order, while legislative murder and
confiscation induce reaction.
If a legislative chamber would act as a court, the first necessity is to
eliminate its legislative character.
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