If the power of making them was
committed either to the Executive or legislature, there would be danger
of an improper complaisance to the branch which possessed it; if to
both, there would be an unwillingness to hazard the displeasure of
either; if to the people, or to persons chosen by them for the special
purpose, there would be too great a disposition to consult popularity,
to justify a reliance that nothing would be consulted but the
Constitution and the laws.
There is yet a further and a weightier reason for the permanency of the
judicial offices, which is deducible from the nature of the
qualifications they require. It has been frequently remarked, with great
propriety, that a voluminous code of laws is one of the inconveniences
necessarily connected with the advantages of a free government. To avoid
an arbitrary discretion in the courts, it is indispensable that they
should be bound down by strict rules and precedents, which serve to
define and point out their duty in every particular case that comes
before them; and it will readily be conceived from the variety of
controversies which grow out of the folly and wickedness of mankind,
that the records of those precedents must unavoidably swell to a very
considerable bulk, and must demand long and laborious study to acquire a
competent knowledge of them.
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