Thus did the Republicans plan to take away from the Supreme Court the opportunity to pass upon the repeal of the Federalist Judiciary Act of 1801 until the old and defective system of 1789, which it restored, was again in full operation. Meanwhile, the wrath of the new National judges, whom the repeal left without offices, would wear itself down, and they would accept the situation as an accomplished fact.[294] John Marshall should have no early opportunity to overturn the Repeal Act, as the Republicans believed he would do if given the chance. Neither should he proceed further with the case of Marbury vs. Madison for many months to come.[295]
Bayard moved that the bill should not go into effect until July 1, thus permitting the Supreme Court to hold its June session; but, said Nicholson, that was just what the Republicans intended to prevent. Was a June session of the Supreme Court "a source of alarm?" asked Bayard. "The effect of the present bill will be, to have no court for fourteen months.... Are gentlemen afraid of the judges? Are they afraid that they will pronounce the repealing law void?"[296]
Nicholson did not care whether the Supreme Court "pronounced the repealing law unconstitutional or not." The Republican postponement of the session for more than a year "does not arise from any design ... to prevent the exercise of power by the judges." But what of the Federalists' solicitude for an early sitting of the court? "We have as good a right to suppose gentlemen on the other side are as anxious for a session in June, that this power may be exercised, as they have to suppose we wish to avoid it, to prevent the exercise."[297]
Griswold could not credit the Republicans with so base a purpose: "I know that it has been said, out of doors, that this is the great object of the bill. I know there have been slanders of this kind; but they are too disgraceful to ascribe to this body. The slander cannot, ought not to be admitted." So Griswold hoped that Republicans would permit the Supreme Court to hold its summer session. He frankly avowed a wish for an early decision that the Repeal Act was void. "I think the speedier it [usurpation] is checked the better."[298]
Bayard at last flatly charged the Republicans with the purpose of preventing the Supreme Court from holding the Repeal Act unconstitutional. "This act is not designed to amend the Judicial system," he asserted; "that is but pretense.... It is to prevent that court from expressing their opinion upon the validity of the act lately passed ... until the act has gone into full execution, and the excitement of the public mind is abated.... Could a less motive induce gentlemen to agree to suspend the sessions of the Supreme Court for fourteen months?"[299]
But neither the pleading nor the denunciation of the Federalists moved the Republicans. On Friday, April 23, 1802, the bill passed and the Supreme Court of the United States was practically abolished for fourteen months.[300]
At that moment began the movement that finally developed into the plan for the secession of the New England States from the Union. It is, perhaps, more accurate to say that the idea of secession had never been entirely out of the minds of the extreme New England Federalist leaders from the time Theodore Sedgwick threatened it in the debate over the Assumption Bill.[301]
Hints of withdrawing from the Union if Virginia should become dominant crop out in their correspondence. The Republican repeal of the Judiciary Act immediately called forth many expressions in Federalist papers such as this from the Boston Palladium of March 2, 1802: "Whether the rights and interests of the Eastern States would be perfectly safe when Virginia rules the nation is a problem easy to solve but terrible to contemplate.... As ambitious Virginia will not be just, let valiant Massachusetts be zealous."
Fisher Ames declared that "the federalists must entrench themselves in the State governments, and endeavor to make State justice and State power a shelter of the wise, and good, and rich, from the wild destroying rage of the southern Jacobins."[302] He thought the Federalists had neglected the press. "It is practicable," said he, "to rouse our sleeping patriotism—sleeping, like a drunkard in the snow.... The newspapers have been left to the lazy or the ill-informed, or to those who undertook singly work enough for six."[303]
Pickering, the truculent, brave, and persistent, anticipated "a new confederacy.... There will be—and our children at farthest will see it—a separation.... The British Provinces, even with the assent of Britain, will become members of the Northern Confederacy."[304]