ON 1 JUDICIAL POWER AND UNCONSTITUTIONAL LEGISLATION, BEING A COMMENTARY ON PARTS OF THE CONSTITUTION OF THE UNITED STATES. BY BRINTON COXE, OF THE BAR OF PHILADELPHIA. "Does the Constitution express or imply the truth that its jus legum, which binds PHILADELP KAY AND Entered according to Act of Congress in the year 1893 by ALEXANDER B. CoxE AND GEORGE HARRISON FISHER, in the Office of the Librarian of Congress at Washington. n NOTE. During his last illness, Mr. Coxe expressed a wish that I should see this book through the press. When it reached my hands, all the first part of the work, including the 37th chapter, was not only set up in type but electrotyped, and is, of course, now published in the same condition in which its author left it. The remaining portion of the work was still in manuscript, and unfortunately not sufficiently completed to justify its publication. This conclusion has only been reached after careful consideration, but has seemed unavoidable. Some portions of the second part of the book were almost entirely unwritten, and what was written was in parts fragmentary, and plainly not in the condition in which its author would have published it. Notes and queries in the manuscript showed that he had in mind changes which he thought ought to be made, and these can, of course, be made by no one else. This is greatly to be re gretted, and the work, as it is now given to the public, lacks completeness in one sense; the purpose with which the author began it, and which he states in his Introduction, is not fully carried out. But I think this defect is more apparent than real, for the published portion is entirely capable of standing by itself, and contains all that was intended to form a part of the Historical Commentary upon the constitution. It is, of course, much to be wished that the Textual Commentary had been completed by the author, in order to meet the views of those he refers to on page 49 of the Introduction; but none the less the portion of the work which he did finish is complete upon the subjects which it treats of, and its great importance can not be doubted. iv In regard to the second part of the book-The Textual Commentary-unfinished though it is, the outline of the author's purpose is clear; he intended in it to treat of the two clauses of the Constitution (2. VI and part of 2.III) which read: "This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." "The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." * * * These two clauses Mr. Coxe intended to examine critically from the standpoint of historical jurisprudence; and it was evidently upon these "twin texts" and upon the reading of them together, that he relied to establish the subject matter of that part of his work-that the Constitution contains express texts providing for judicial competency to decide questioned legislation to be constitutional or unconstitutional and to hold it valid or void accordingly. The exact line of his argument cannot now be made out from his manuscript, and I greatly fear that any effort to make a rèsumè of it will fail to do justice to what he had in mind. Indeed, there is so great difficulty in one person's trying to fill out the partially completed argument of another, and there are so certain to be gaps in the reasoning, which the author would have been the first to see and to regret, that I long doubted the advisability of trying to formulate his argument. But Mr. Coxe had evidently worked a great deal upon the matter, and, to some who have been |