Suppose, said Morris, that Congress should pass an act forbidden by the Constitution—for instance, one laying "a duty on exports," and "the citizen refuses to pay." If the Republicans were right, the courts would enforce a collection. In vain would the injured citizen appeal to the Supreme Court; for Congress would "defeat the appeal, and render final the judgment of inferior tribunals, subjected to their absolute control." According to the Republican doctrine, "the moment the Legislature ... declare themselves supreme, they become so ... and the Constitution is whatever they choose to make it."[206] This time Morris made a great impression. The Federalists were in high feather; even the Republicans were moved to admiration. Troup reported to King that "the democratical paper at Washington pronounced his speech to be the greatest display of eloquence ever exhibited in a deliberative assembly!"[207]
Nevertheless, the Federalist politicians were worried by the apparent indifference of the rank and file of their party. "I am surprized," wrote Bayard, "at the public apathy upon the subject. Why do not those who are opposed to the project, express in the public papers or by petitions their disapprobation?... It is likely that a public movement would have great effect."[208] But, thanks to the former conduct of the judges themselves, no "public movement" developed. Conservative citizens were apprehensive; but, as usual, they were lethargic.
On February 3, 1802, the Senate, by a strictly party vote[209] of 16 to 15, passed the bill to repeal the Federalist Judiciary Act of 1801.[210]
When the bill came up in the House, the Federalist leader in that body, James A. Bayard of Delaware, moved to postpone its consideration to the third Monday in March, in order, as he said, to test public opinion, because "few occasions have occurred so important as this."[211] But in vain did the Federalists plead and threaten. Postponement was refused by a vote of 61 to 35.[212] Another plea for delay was denied by a vote of 58 to 34.[213] Thus the solid Republican majority, in rigid pursuance of the party plan, forced the consideration of the bill.
The Federalist organ in Washington, which Marshall two years earlier was supposed to influence and to which he probably contributed,[214] saw little hope of successful resistance. "What will eventually be the issue of the present high-handed, overbearing proceedings of Congress it is impossible to determine," but fear was expressed by this paper that conditions would be created "which impartial, unbiased and reflecting men consider as immediately preceding the total destruction of our government and the introduction of disunion, anarchy and civil war."[215]
This threat of secession and armed resistance, already made in the Senate, was to be repeated three times in the debate in the House which was opened for the Federalists by Archibald Henderson of North Carolina, whom Marshall pronounced to be "unquestionably among the ablest lawyers of his day" and "one of the great lawyers of the Nation."[216] "The monstrous and unheard of doctrine ... lately advanced, that the judges have not the right of declaring unconstitutional laws void," was, declared Henderson, "the very definition of tyranny, and wherever you find it, the people are slaves, whether they call their Government a Monarchy, Republic, or Democracy." If the Republican theory of the Constitution should prevail, "better at once to bury it with all our hopes."[217]
Robert Williams of the same State, an extreme but unskillful Republican, now uncovered his party's scheme to oust Federalist judges, which thus far had carefully been concealed:[218] "Agreeably to our Constitution a judge may be impeached," said he, but this punishment would be minimized if judges could declare an act of Congress unconstitutional. "However he may err, he commits no crime; how, then, can he be impeached?"[219]
Philip R. Thompson of Virginia, a Republican, was moved to the depths of his being: "Give the Judiciary this check upon the Legislature, allow them the power to declare your laws null and void, ... and in vain have the people placed you upon this floor to legislate.[220]... This is the tree where despotism lies concealed.... Nurture it with your treasure, stop not its ramifications, and ... your atmosphere will be contaminated with its poisonous effluvia, and your soaring eagle will fall dead at its root."[221]
Thomas T. Davis of Kentucky, deeply stirred by this picture, declared that the Federalists said to the people, you are "incapable" of protecting yourselves; "in the Judiciary alone you find a safe deposit for your liberties." The Kentucky Representative "trembled" at such ideas. "The sooner we put men out of power, who [sic] we find determined to act in this manner, the better; by doing so we preserve the power of the Legislature, and save our nation from the ravages of an uncontrolled Judiciary."[222] Thus again was revealed the Republican purpose of dragging from the National Bench all judges who dared assert the right, and to exercise the power to declare an act of Congress unconstitutional.[223]
The contending forces became ever more earnest as the struggle continued. All the cases then known in which courts directly or by inference had held legislative acts invalid were cited;[224] and all the arguments that ever had been advanced in favor of the principle of the judicial power to annul legislation were made over and over again.