ensued in the Senate, February 3, 1803, in which the
question of the power of the Court to pass on the validity of an Act of Congress was again argued, and questioned by some of the Southern Republicans." "Ought
we to go to the Courts and ask them whether we have
done our duty or whether we have violated the Constitution?" asked Senator Jackson of Georgia. Congressman James Ross of Pennsylvania supported the power
of the Judiciary in a remarkably able and elaborate
speech, in which he said: "Either the law or the Constitution is a nullity. If the new doctrines be true, the
law must prevail. If so, why provide any prohibitions
or exceptions in a Constitution, and why ask any solemn
Judge to support it? The Court when pressed for
judgment must declare which shall prevail; and if they
do their duty, they will certainly say that a law at
variance with the Constitution is utterly void; it is
made without authority and cannot be executed. By
doing so, the Courts do not control or prostrate the just
authority of Congress. It is the will of the people expressed in the Constitution which controls them." Ross
also pointed out the singular fact that hitherto the chief
complaint of the Anti-Federalists had been that the
Federalist Judges had, in the various cases coming
before them under the much-attacked Alien and Sedition
laws, upheld the validity of those laws. But if the Court
had no power to deny their validity, with what just
reason could their action in sustaining the criminal
prosecutions under these laws be assailed? Hence,
Ross presented to the present opponents of the Court
ing the Judges of all power derived under the Act repealed. The office still remains, which he holds to be a mere capacity, without a new appointment, to receive and exercise any new judicial powers which the Legislature may confer. It has been considered here that the most advisable course for the Circuit Courts to pursue will be, at the end of the ensueing session to adjourn generally, and to leave what remains to be done to the Supreme Court." Hamilton Papers MSS. 17th Cong., 2d Sess., 51 et seq.
