, 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. For example, the House of Lords in
England has long discharged the duties of a tribunal of last resort for
the empire, and with general approbation, but only because, when sitting
as a court, the law lords sit alone. Politicians and political
influences are excluded. Where political influences enter disaster
follows. Hence the infamous renown of political decisions in legal
controversies, such as bills of attainder and _ex post facto_ laws, or
special legislation to satisfy claims which could not be defended before
legitimate courts, or the scandals always attending the trial of
election petitions. The object of true courts is to shield the public
from these and kindred abuses.

In primitive communities courts are erected to defend the weak against
the strong, by correlating local customs in such wise that some general
principle can be deduced which shall protect the civil rights of those
who cannot protect themselves, against the arbitrary exactions of
powerful neighbors. In no community can every person have equal civil
rights. That is impossible. Civil rights must vary according to status.
But such rights as any person may have, those the courts are bound to
guard indifferently. If the courts do not perform this, their first and
most sacred duty, I apprehend that order cannot be permanently
maintained, for this is equality before the law; and equality before the
law is the cornerstone of order in every modern state.

I conceive that the lawyers of the age of Washington were the ablest
that America has ever produced. No men ever understood the principle of
equality before the law more thoroughly than they, and after the
establishment of this government a long series of great and upright
magistrates strove, as I have shown,