An essay on judicial power and unconstitutional legislation : being a commentary on parts of the Constitution of the United States / Brinton Coxe.

Format:

Book

Author/Creator:

Coxe, Brinton, 1833-1892, author.

Language:

English

Subjects (All):

Judicial review--United States.

Judicial review.

Constitutional law--United States.

Constitutional law.

Physical Description:

1 online resource (xvi, 415 pages)

Place of Publication:

Philadelphia : Kay and Brother, 1893.

Summary:

Coxe's main argument is 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" (4). There are four subordinate arguments: First, that the framers of the constitution specifically granted the courts the power to hold a law unconstitutional by dint of the Supremacy Clause and by Article III, Section 2 defining judicial power. Second, that documents written before the constitution were influential in framing the text and establishing the idea of judicial review. The third looks at the era before and during the confederation with an eye toward the court's power to rule on constitutionality. The fourth argument finds analogies and precedents in foreign law, including Roman and Canon law.

Contents:

Introduction

The subject of this essay

1 (5)

Reasons for its fresh discussion

6 (18)

Review of list (in appendix to 131 U. S.) of cases in which laws held unconstitutional

7 (1)

These cases examined

8 (14)

Cases in which the Supreme Court has held State legislation federally unconstitutional

22 (1)

Conclusion

23 (1)

Other reasons for fresh discussion of the subject

24 (18)

Juilliard v. Greenman, and Mr. McMurtrie's defense thereof

25 (2)

The doctrine of that case upon implied powers

27 (1)

The rigorous exercise of such powers

28 (4)

Mr. McMurtrie's doctrine of judicial power

32 (2)

Juilliard v. Greenman's doctrine of legislative power

34 (2)

The consequences of both being true

36 (3)

Review

39 (3)

The plan of this essay

42 (12)

The Historical Commentary

42 (5)

The Textual Commentary

47 (7)

Marbury v. Madison

54 (18)

HISTORICAL COMMENTARY

Part I.

Investigation of foreign laws on the judiciary's relation to unconstitutional legislation

72 (1)

Preliminary

72 (4)

French law on the subject

76 (8)

Swiss public law on the subject

84 (5)

German law on the subject

89 (16)

Conflicts between the laws of the Empire and States

90 (4)

Conflicts between the Constitution and laws of a State

94 (1)

The case of Garbade v. Bremen

95 (4)

The case of K. v. Niedervieland

99 (3)

Observations upon these cases

102 (2)

The court of the imperial chamber under the old empire

104 (1)

Roman law on the subject

105 (8)

106 (1)

Rescripts in the classic period of Roman law

106 (2)

Rescripts in Justinian's time

108 (2)

The jus legum of the Roman republic

110 (3)

The Roman law on the subject continued

113 (8)

Bowyer's views on the U. S. Constitution

114 (1)

Mandate, and the delegation of legislative power

115 (3)

Vattel's doctrine of legislative power

118 (3)

The Canon law on the subject

121 (13)

The partition of power between Church and State

122 (1)

Case in the Rota Romana in 1648

123 (4)

The Corpus Juris Cunonici upon the subject

127 (2)

Case in the Rota Romans in 1638

129 (5)

The Canon law in England on the subject

134 (28)

The Canon law in England before the Reformation

135 (2)

The Constitutions of Clarendon

137 (6)

English statutes held void as against the church

143 (4)

The Prior of Castlaker v. the Dean of St. Stephens

147 (5)

Further reflections upon that case

152 (1)

Rous v. an Abbot

153 (7)

The Reformation, and the restrictions it removed from the power of parliament

160 (2)

Conclusion as to conflicts between the laws of church and State Comparison of the Canon law with our law on the head of conflicts of laws

162 (3)

The powers of parliament before 1688

165 (6)

Acts of parliament restricting prerogative

165 (1)

The case of Godden v. Hales

166 (2)

The Sheriff's case

168 (3)

The doctrine concerning void statutes

171 (7)

Blackstone's tenth rule

172 (1)

Coke upon invalid statutes

Certain early cases upon the subject

173 (3)

Coke on iniquum est aliquem suae rei esse judieem

176 (1)

Coke's view of Rous v. an Abbot

The effect of his view in legal history

177 (1)

Results of examination of English law

178 (3)

Relation of acts of parliament to the colonies before 1776

181 (6)

The extension of acts of parliament to the colonies and their trade

181 (1)

The statute of 7 and 8 William III cap 22

182 (1)

Statutes relating to stranded ships

183 (1)

The case of the Canary wine trade

184 (1)

The law of statutes extending to the colonies before 1776

Modern English law upon the subject

185 (2)

Legislation for the colonies by prerogative

187 (10)

Relation of the colonies thereto

188 (2)

The case of Guernsey and Jersey

190 (1)

The case of the island of Grenada

190 (7)

Colonial laws void for repugnancy to the laws of England

197 (17)

The inhibition of repugnancy

198 (5)

The prerogative in these cases

203 (2)

The colonial laws, and their transmission to the king in council

205 (2)

Modus procedendi as to them

207 (1)

Winthrop v. Lechmere

208 (3)

Whether the order determining it was judicial or not

211 (2)

Appeals to the king in council from Canada since 1867

213 (1)

Conclusion as to the English law

214 (2)

Conclusion as to foreign laws

216 (3)

Part II.

Investigation of the laws of certain states on the relation of judicial power to unconstitutional legislation before and during the confederation

219 (1)

The states in which the judiciary claimed the power

219 (4)

Rutgers v. Waddington

223 (11)

Trevett v. Weeden

234 (14)

Bayard v. Singleton

248 (19)

That case as reported by Martin

249 (2)

Further information concerning it

251 (2)

Iredell's letter of an elector

253 (6)

Iredell's letter to Spaight

259 (4)

Further consideration of the case

263 (3)

When it became known to the Framers' convention

266 (1)

The foregoing cases further considered

267 (3)

Conclusions of the Historical Commentary

270 (2)

Part III.

The historical antecedents of the constitutional texts concerned

272 (1)

The historical antecedents of paragraph 2, VI

272 (19)

Its text

273 (1)

The Treaty of Peace

274 (1)

Certain acts of the Federal congress concerning it

274 (10)

Origin of the doctrine that a treaty may be part of the law of the land of a State

284 (1)

Origin of the doctrine that a legislature can not repeal some parts of the law of the land

285 (2)

The meaning of the words ``the law of the land''

287 (3)

Origin of the pursuance clause of paragraph 2. VI

290 (1)

The historical antecedent of the beginning of section 2. III

291 (2)

Part IV.

The intention of the Framers on the relation of judicial power to unconstitutional legislation

293 (1)

293 (5)

Their intentions as to the State courts

298 (10)

The State courts and the confederation

300 (2)

The confederation as an obstacle to ratifying the constitution

302 (5)

307 (1)

Same subject continued

308 (17)

Conflicts between the laws of the Union and States

310 (1)

The two principal plans of union

311 (1)

The two methods proposed for settling conflicts between Federal and State laws

312 (1)

The legislative method

The judicial method

313 (2)

The intention of the Framers in adopting the judicial method

315 (1)

History of the proceedings thereon

316 (5)

The words ``law of the land'' in the Constitution

321 (3)

324 (1)

The Framers' intentions as to the U.S. Supreme Court

325 (11)

The inferior U. S. Courts

326 (1)

Paragraph 2. VI was intended to bind all courts

327 (1)

The rejected legislative negative

328 (1)

The relation of paragraph 2. VI to section 2. III

329 (2)

History of the legislative negative in the convention

331 (5)

The Framers' intentions as to the Supreme Court and unconstitutional Federal laws

336 (6)

Their intentions as to appeals from the State courts to the U. S. Supreme Court

342 (13)

The subject as shown by the debates

343 (5)

Certain views of C. J. Marshall

348 (2)

The debates upon this point

350 (5)

Appeals from the inferior U. S. courts to the Supreme Court

355

APPENDICES

Appendix No. 1. See page 5. (Incomplete)

361 (1)

Appendix No. 2. See page 123. Case in the court of the Rota Romana in 1648

361 (8)

Appendix No. 3. See page 206. Opinion of Charles R. Hildeburn, Esq., upon the question whether the lower counties upon Delaware were a transmitting or a non-transmitting colony

369 (1)

Appendix No. 4. See page 213. Order of the king in council, upon the appeal of John Winthrop, against Thomas Lechmere, &c., &c.

370 (13)

Appendix No. 5. See page 213.

The relation of judicial power to unconstitutional legislation in Canada

383 (2)

Appendix No. 6. See page 259. Letter of Richard Dobbs Spaight to James Iredell

385 (2)

Appendix No. 7. See page 283. The Federal letter, and the resolutions of Congress of April and March, 1787.

Notes:

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