CH. XXXVIII.]
JUDICIARY—IMPORTANCE OF.
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CHAPTER XXXVIII.
JUDICIARY—ORGANIZATION AND POWERS.
§ 1567. The order of the subject next conducts us to the consideration of the third article of the constitution, which embraces the organization and powers of the judicial department.
§ 1568. The importance of the establishment of a judicial department in the national government has been already incidentally discussed under other heads. The want of it constituted one of the vital defects of the confederation.[1] And every government must, in its essence, be unsafe and unfit for a free people, where such a department does not exist, with powers co-extensive with those of the legislative department.[2] Where there is no judicial department to interpret, pronounce, and execute the law, to decide controversies, and to enforce rights, the government must either perish by its own imbecility, or the other departments of government must usurp powers, for the purpose of commanding obedience, to the destruction of liberty.[3] The will- ↑ The Federalist, No. 22; Cohens v. Virginia, 6 Wheat. R. 388; 1 Kent's Comm. Lect. 14, p. 277.
- ↑ The Federalist, No. 80; 1 Kent's Comm. Lect. 14, p. 277; Cohens v. Virginia, 6 Wheat. R. 384; 2 Wilson's Law Lect. ch. 3, p. 201; 3 Elliot's Deb. 143; Osborne v. Bank of United States, 9 Wheat. R. 818, 819.—Mr. Justice Wilson has traced out, with much minuteness of detail, the nature and character of the judicial department in ancient, as well as modern nations, and especially in England; and a perusal of his remarks will be found full of instruction. 2 Wilson's Law Lect. ch. 3, p. 201, &c.
- ↑ 1 Kent's Comm. Lect. 14, p. 277.—It has been finely remarked by Mr. Chief Justice Marshall, that "the judicial department has no will in any case. Judicial power, as contradistinguished from the power of
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