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 resume 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 legis lation 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 "cariare" is equally so.

to all in 1787; and was applied directly to colonial laws by the statute of 7 and 8 William III cap 22 (see post, page 183), by virtue of which all colonial laws violating certain anterior British statutes were declared to be null and void.

The words "law of the land," contained in this same section have also a technical meaning, and are to be found used in multitudes of instances as far back as our law can be traced; not only do they occur in the Constitutions of nine States in 1787, but they extend back to the days of law latin-where lex terrae is a frequent and familiar term-and to those of Norman French and of "la ley de la terre;" and the exact equivalent is moreover to be found on the Continent of Europe. In all these systems, the words had a distinct meaning, constituting a body of laws and privileges, the right to which could only be lost by certain offenses, and which it was particularly the duty of the judiciary to enforce their oath of office required them to decide by it.

The term, moreover, referred to a law of the land of each State, and not to one law of the land of the whole Union.* It existed in nine State Constitutions at the time; Trevett v. Weeden shows positively that there was a "law of the land" of Rhode Island at its date; and the then New York Constitution (Article 33) and the United States Con

*In this connection, Mr. Coxe calls attention to the error of Mr. Calhoun, in his debate with Mr. Webster in the Senate on February 24th, 1849. (See Curtis's Life of Webster, ed. 4, Vol. ii, p. 366):

"Mr. Calhoun: Then the simple question is, does the Constitution exterd "to the territories, or does it not extend to them? Why the Constitution "interprets itself. It pronounces itself to be the supreme law of the land. "Mr. Webster : What land?

"Mr. Calhoun: The land, the territories of the United States are a part of the "land. It is the supreme law, not within the limits of the States of this "Union merely, but wherever the flag goes-wherever our authority goes, the "Constitution in part goes, not in all its provisions certainly, but all its suit“able provisions."

stitution are alike (the latter being evidently taken from the former) upon the subject of impeachment, except that the former provides that the person impeached shall be still liable to trial according to the laws of the land, while the United States Constitution reads "according to law." The words "of the land" were evidently omitted, because they could only refer to the system of each State and would, therefore, have been quite out of place in this section of the Constitution.

Finally, in the expression "and the judges in every State shall be bound thereby," bound is another technical and express word, the meaning of which is to be found discussed by writers treating e. g. of statutes which bind the king; and these statutes do not mean that they bind only the king but that they bind even him, as well as every one else. The clause, therefore, will read thus, if its technical terms are especially emphasized: This Constitution and the laws of the United States made in pursuance thereof and all treaties made or which shall be made under their authority -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. By the adoption of the Constitution, the Constitution itself and the constitutional laws of the Union were engrafted upon the law of the land of each respective State in the Union as a part thereof; and the conclusion is therefore express and unavoidable that it became the function of the State judiciaries to enforce that new law; they must obey, and execute the legislative derogation of the non-obstante clause. It is peculiarly their function to decide upon points of the law of the land, and all questions arising thereunder are hence judicial questions.

Next, as to the express competency of the United States Supreme Court to do the same thing, that is pointed out by

the clause (2.III) upon the judicial power. The judicial power necessarily extends to a judicial question and hence extends to questions arising under 2. VI, which have been shown to be judicial questions. But clause 2.III alone would not have that effect; what precedes is also necessary to it, and the conclusion is mainly to be reached by reading together 2. VI and 2.III in the view of what has already been shown. To put them together, they are as follows:

The judicial power (of the United States) shall extend to all cases in law and equity arising under this Constitųtion, the laws of the United States and all treaties made, or which shall be made, under their authority, (and) this Constitution, 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 (in every State), anything in the Constitution or laws of any State to the contrary notwithstanding,

The Index and the Table of Contents have been prepared by me; the latter mainly by the use of the author's headlines. The Table of Cases was made by Mr. Adrian van Helden, who had rendered valuable assistance to Mr. Coxe in many ways during the preparation of the book.

WILLIAM M. MEIGS.

216 South Third Street, Philadelphia.