Judges went. For he must acknowledge that the Judges had the power of deciding the constitutionality of a law under which they were to act.

In the same debate, the Federalists stated that the Judiciary had settled the question. Roger Griswold of Connecticut said:

As a constitutional question he thought no doubt could now exist, whatever might have been entertained before the question was settled on its present principles. The Judiciary had decided it to be a law effectually within the Constitution. There might be some other quorum to which gentlemen would wish to appeal, perhaps they might be better satisfied by appealing to the people, but he could not be. He believed the decision to be made in a constitutional mode, and was desirous of giving it his decided support.

John Rutledge, Jr., of South Carolina said:

Respecting the constitutionality of this law, I will only observe that our Judiciary (and they are the only appropriate judges of its constitutionality) have decided and repeatedly decided that it was constitutional. An honorable gentleman from Virginia has told us that a more high and respectable tribunal - the people had declared it unconstitutional. Sir, I am not so good a Democrat nor so diffident of myself, as to have recourse to the people on the passage of every law, to enquire of them if it be constitutional. . . . If any proceeding of the Legislature be unconstitutional, I have the consolation of knowing the Judiciary will declare it so, and to the decisions of our venerable and profoundedly learned Judges I look up for information, whenever the constitutionality of a law is questioned, and not to the resolutions of popular and tumultuous meetings. If, upon every constitutional doubt, we are to have recourse to the people, there is an end to representative Government.

Less than a month after these strong admissions as to the power of the Judiciary, the Federalist party enacted its famous Circuit Court Act of 1801, under the provisions of which President Adams made his much assailed appointments of the "Midnight Judges." The repeal of this Act became the primary desire and determination of President Jefferson and the Anti-Federalists. Against the bill embodying this repeal, the Federalists raised the cry of unconstitutionality. The debate over the repeal became bitterly and heatedly partisan; and under the exigency of partisan politics, the Court's power of judicial review was questioned in Congress, for the first time other than in the statement by Charles Pinckney above quoted. On February 3, 1802, John Breckenridge, the Jeffersonian leader in the Senate, who had been advocating the repeal bill for over a month, rose and said, in answer to the charge as to its invalidity: "To make the Constitution a practical system, this pretended power of the Courts to annul the laws of Congress cannot possibly exist. The Legislature have the exclusive right to interpret the Constitution in what regards the law-making power, and the Judges are bound to execute the laws they make." This attack on the Court's power was an entire reversal of the views previously expressed by

1 Act of Feb. 13, 1801, c. 4 (2 Stat. 89). For most illuminating descriptions of the attitude of the Anti-Federalists and of the country in general towards this statute, see speeches in the House in 1830 of James Buchanan, Jan. 14; James K. Polk, Jan. 20; J. W. Huntington, Feb. 16; Charles A. Wickliffe, March 16. 21st Cong., 1st Sess., pp. 530, 546, 566, 599.

27th Cong., 1st Sess., Jan. 8, 13, Feb. 3, 1803, speeches of Breckenridge, Stevens Thomson Mason of Virginia, and James Jackson of Georgia, in the Senate; speeches of John Randolph of Virginia, Thomas T. Davis of Kentucky, and Robert Williams of North Carolina, in the House.

Breckenridge; for in a debate in the Kentucky Legislature, in November, 1798, on the famous Kentucky Resolutions as to the Alien and Sedition Laws, he had denied emphatically that the Congress were "the sole judges of the propriety and constitutionality of all acts done by them", and while supporting the right of the States, in the last resort, to pass upon the constitutionality of a Federal statute, he had expressly admitted that the Judges might refuse to act under such a statute, on the ground of its unconstitutionality. These views he had shared with the drafter of the Resolution, George Nicholas, another leading Anti-Federalist of Kentucky, who had written of the Alien and Sedition Laws that if enforcement were attempted, "the Courts would declare them to be void."2 Breckenridge's view was supported in this debate in 1802, by less than half a dozen Anti-Federalists coming wholly from Virginia, Georgia, North Carolina, and Kentucky. Anti-Federalists and Federalists from the other States alike upheld the Court's power, and John Bacon, a strong AntiFederalist from Massachusetts, stated that he "must frankly acknowledge the right of judicial officers of every grade to judge for themselves, of the constitutionality of every statute on which they are called to act in their respective spheres. This is not only their right, but it is their indispensable duty thus to do." 3

1 See The Kentucky Resolutions of 1798 (1887), by Ethelbert D. Warfield, pp. 93, et seq.

2 Letter of George Nicholas to his friend in Virginia, Nov. 10, 1798, in National Magazine (June, 1799), I, 217.

3 See report of Bacon's speech in National Intelligencer, March 19, July 28, 1803, publishing in full this portion of the speech which is omitted in the report in the Annals of Congress.

That Breckenridge's statement as to "pretended power of the Courts to annul the laws of Congress was the announcement of a novel, unexpected, and unaccepted doctrine, was pointed out by several speakers in the debate, Archibald Henderson of North Carolina, terming it "the monstrous and unheard of doctrine which has lately been advanced", Joseph Hemphill of Pennsylvania stating that "a doctrine new and dangerous has begun to unfold itself", and Jonathan Dayton speaking of "those newly professed, though secretly harboured, doctrines which exhibit in their true colors their deformity and dangerous tendencies. " 1

On February 23, 1803, Chief Justice Marshall rendered his decision in the case of Marbury v. Madison, in which the Supreme Court for the first time held an Act of Congress unconstitutional. That its action did not constitute a "usurpation" and that its power so to act had been recognized and accepted, without question, by statesmen of both political parties in every Congress that had sat prior to the rendering of the decision, is conclusively shown by the foregoing summary.2

1 In a debate in the Senate, Feb. 3, 1803 (three weeks prior to the decision of Marbury v. Madison), on the petition of the "midnight Judges" that the President caused a quo warranto proceeding to be filed to obtain a judicial decision on their claims, the power of the Court to pass on an Act of Congress was again disputed by some Southern Democrats. 7th Cong., 2d Sess., Feb. 3, 1803. 2 It may be noted that at the date of this decision thirty-nine out of the fifty-five members of the Federal Convention of 1787 were still alive (sixteen having died, as follows: W. C. Houston, Brearly, Jenifer, Franklin, Livingston, Mason, Sherman, Bedford, Read, Wilson, Washington, Rutledge, Mifflin, Blair, Yates, Spaight). If the Court had "usurped" a power not given to it by the Constitution, it might have been expected that some one of these thirtynine survivors of the Convention would have protested; but so far as appears from letters or printed publication, no one of them made any protest (except Charles Pinckney, as above noted).

CHAPTER FIVE

THE PROPOSAL TO MAKE CONGRESS THE
SUPREME AND FINAL JUDGE OF ITS
OWN POWERS

"Now will any one contend that it is the true spirit of this Government that the will of a majority of Congress should, in all cases, be the supreme Law? If no security was intended to be provided for the rights of the States and the liberty of the citizen, beyond the mere organization of the Federal Government, we should have had no written Constitution, but Congress would have been authorized to legislate for us, in all cases whatsoever. If the will of a majority of Congress is to be the supreme law of the land, it is clear the Constitution is a dead letter and has utterly failed of the very object for which it was designed the protection of the rights of the minority." ROBERT Y. HAYNE of South Carolina, in the Senate, Jan. 26, 1830, 21st Cong., 1st Sess.

...

"They . . . wish that a construction be put upon the Constitution by Congress which shall be considered as the Constitution itself, and are unwilling that there should be any check to oppose it; and of course every construction put upon it by the different Legislatures will exhibit the appearance of a new Constitution, a Constitution to be tossed and blown about by every political breeze. The powers of Congress will be equal to the powers of the English Parliament, transcendent, splendid and without control." JOSEPH HEMPHILL of Pennsylvania, Feb. 16, 1802, 7th Cong., 1st Sess.

"It is a sound position that you should never attempt an alteration in an instrument so complicated and calculated to serve so many and opposite interests, without being able, by the test of experiment, to discern clearly the necessity of alteration, and without a moral certainty that the change shall not only remove an existing evil, but that it shall not produce any, itself.”—URIAH TRACY of Connecticut, in the Senate, Dec. 2, 1803, 8th Cong., 1st Sess.

In the foregoing chapters, it has been pointed out that the function of the Supreme Court in holding an