great question, therefore, of the power of the Judiciary with respect to the validity of Federal statutes was postponed for consideration until a later date. As pointed out above, however, the striking fact about the episode is that this first refusal by Supreme Court Judges on Circuit to acknowledge the validity of an Act of Congress seems to have been heartily supported by the adherents of the political party which favored a strict construction of the Constitution and to have been opposed by the party which was devoted to Nationalist theories. A review of the contemporary writings and journals from 1789 to 1802 clearly demonstrates that it was frequently the Anti-Federalists who supported the right of the Court to pass upon the constitutional validity of legislation, because they felt that it was the great guarantee of protection to State and individual rights against Congressional invasion, and that only in this manner would the power of the Federal Government be curbed;[1] they welcomed the Court as a needed check upon Congress; and it was in the writings of two strong Federalists, Zephaniah Swift of Connecticut and Richard Dobbs Spaight of North Carolina,
- ↑ That strong Anti-Federalist, Governor John Hancock, in his address to the Massachusetts Legislature, June 3, 1790, said: "Our persons and possessions are governed by standing and known laws and secured by a Constitution formed by ourselves. This Constitution is a law to the legislative authority itself, and lest the pride of office or the hand of lawless power should rob the people of their constitutional security, a proper balance is provided in the Judicial Department"; see Gazette of the United States, June 9, 1790.
tary of War Knox to the Senate and House, Feb. 21, 1794, reporting that "such adjudication has been recently obtained and that the determinations of the commissioners were held to convey no legal rights to the invalids claiming under them." Amer. State Papers, Misc., 1, 47.
Several legal writers have stated that the Court held the statute unconstitutional; but as pointed out by James B. Thayer in his Constitutional Cases, I, 105, note: "It is inaccurate to say that this case holds the Act of 1792 to be unconstitutional as appears to be said in the note in 13 How. 52, and as is expressly said in the Reporter's Note in 131 U. S. App." Farrand also says that "probably the Court did not formally declare the Act unconstitutional. … It is altogether probable that the Court evaded the issue." See contra, however, Shiras, J., in Re Sanborn (1893), 148 U. S. 222.
