It shall,
nevertheless, be conceded to them, agreeably to the interpretation given
to that maxim in the course of these papers, that it is not violated by
vesting the ultimate power of judging in a PART of the legislative body.
But though this be not an absolute violation of that excellent rule, yet
it verges so nearly upon it, as on this account alone to be less
eligible than the mode preferred by the convention. From a body which
had even a partial agency in passing bad laws, we could rarely expect a
disposition to temper and moderate them in the application. The same
spirit which had operated in making them, would be too apt in
interpreting them; still less could it be expected that men who had
infringed the Constitution in the character of legislators, would be
disposed to repair the breach in the character of judges. Nor is this
all. Every reason which recommends the tenure of good behavior for
judicial offices, militates against placing the judiciary power, in the
last resort, in a body composed of men chosen for a limited period.
There is an absurdity in referring the determination of causes, in the
first instance, to judges of permanent standing; in the last, to those
of a temporary and mutable constitution.
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