History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 2: With Notices of Its Principle FramersCurtis, George Ticknor
History
History of the Origin, Formation, and Adoption of the Constitution of the United States, Vol. 2: With Notices of Its Principle Framers
Curtis, George Ticknor
Constitutional history -- United States
The introduction, therefore, of a judicial department into the new
plan of government, of itself evinces an intention to clothe that
government with powers that could be executed peacefully, and without
the necessity of putting down the organized opposition of subordinate
communities. By their resort to this great instrumentality, we may
perceive how much, in this particular, the framers of the Constitution
were aided by the spirit and forms of the institutions which the
people of these States had already framed for their separate
governments. The common law, which the founders of all these States
had brought with them to this country, had accustomed them to regard
the judiciary as clothed with functions in which two important objects
were embraced. By the known course of that jurisprudence the judiciary
is, in the first place, the department which declares the construction
of the laws; and, in the second place, when that department has
announced the construction of a law, it is not only the particular
case that is settled, but the rule is promulgated that is to determine
all future cases of the same kind arising under the same law. Thus the
judiciary, in governments whose adjudications proceed upon the course
of the common law, becomes not merely the arbitrator in a particular
controversy, but the department through which the government
interprets the rule of action prescribed by the legislature, and by
which all its citizens are to be guided. This office of the judicial
department had long been known in all the States of the Union at the
time of the formation of the national Constitution.
By the introduction of this department into their plan of government,
the framers of the Constitution obviously intended that it should
perform the same office in their national system which the
corresponding department had always fulfilled in the States. No other
function of a judiciary was known to the people of the United States,
and this function was both known and deemed essential to a
well-regulated liberty. It was known that the judicial department of a
government is that branch by which the meaning of its laws is
ascertained, and applied to the conduct of individuals. To effect
this, it was introduced into the system whose gradual formation and
development we are now examining.
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