ON 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 PHILADELPHIA: KAY AND BROTHER, 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. 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 consulted, it seemed so unfortunate that all this work should go for naught, that I have made the effort. I am well aware that the sketch is very imperfect, but I believe that the imperfections are under the circumstances unavoidable. In the first place, the author examined clause 2 of article VI and called attention to the fact that it is legislative. It enacts what the law shall be, as clearly as any statute; and it must, therefore, bind all judges and all public and private persons capable of being bound; otherwise it would not be legislation. The fact that it reads that the judges of the State courts shall be bound thereby by no means confines its operation to those officials, but simply means that even they shall be bound; and it was inserted to avoid evils well known in public affairs at that time. The effect aimed at by this legislation was then more nearly approached by enacting that certain things pointed out should be the supreme law of the land, and in this connection laws unauthorized by the Constitution were excluded from this effect by the use of the technical words (taken almost verbatim from Article 12 of the Articles of Confederation) "in pursuance thereof," by which laws not enacted in pursuance of the Constitution were excluded from the effect given to pursuant laws by the clause in question. The clause was finally perfected by the use of the words "anything in the Constitution or Laws of any State to the contrary notwithstanding." These words, also, are technical and express, and are an instance of the very well-known non-obstante clause, the effect of which has always been held to be to derogate to—or to repeal and make of no effect—any legislation that comes within its scope. This was very well known, and its operation seen in many instances familiar *Pursuance and variance or departure are well defined terms in pleading; and in the Civil law "variare" is equally so. |