Forcible resistance, if the Republican assault on the Judiciary succeeded, had twice been intimated during the debate. As yet, however, actual secession of the Northern and Eastern States had not been openly suggested, although it was common talk among the Federalists;[269] but now one of the boldest and frankest of their number broadly hinted it to be the Federalist purpose, should the Republicans persist in carrying out their purpose of demolishing the National courts.[270] In closing a long, intensely partisan and wearisome speech, Roger Griswold of Connecticut exclaimed: "There are states in this Union who will never consent and are not doomed to become the humble provinces of Virginia."
Joseph H. Nicholson of Maryland, Republican, was hardly less prolix than Griswold. He asked whether the people had ever approved the adoption of the common law by the Judiciary. "Have they ever sanctioned the principle that the judges should make laws for them instead of their Representatives?"[272] Tiresome as he was, he made a conclusive argument against the Federalist position that the National Judiciary might apply the common law in cases not provided for by acts of Congress.
The debate ran into the month of March.[273] Every possible phase of the subject was gone over time and again. All authorities which the ardent and tireless industry of the contending partisans could discover were brought to light. The pending case of Marbury _vs._ Madison was in the minds of all; and it was repeatedly dragged into the discussion. Samuel W. Dana of Connecticut examined it minutely, citing the action of the Supreme Court in the case of the application for a mandamus to the Secretary of War upon which the court acted February 14, 1794: "There does not appear to have been any question respecting the general power of the Supreme Court, to issue a mandamus to the Secretary of War, or any other subordinate officer." That was "a regular mode for obtaining a decision of the Supreme Court.... When such has been the unquestioned usage heretofore, is it not extraordinary that there has not been prudence enough to say less about the case of Marbury against the Secretary of State?"[274]
Dana then touched upon the general expectation that Marshall would declare void the Repeal Act. Because of this very apprehension, the Republicans, a few days later, suspended for more than a year the sessions of the Supreme Court. So Dana threatened that if the Republicans should pass the bill, the Supreme Court would annul it; for, said he, the Judiciary were sworn to support the Constitution, and when they find that instrument on one side and an act of Congress on the other, "what is their duty? Are they not to obey their oath, and judge accordingly? If so, they necessarily decide, that your act is of no force; for they are sworn to support the Constitution. This is a doctrine coeval with the existence of our Government, and has been the uniform principle of all the constituted authorities."[275] And he cited the position taken by National judges in 1792 in the matter of the pension commission.[276]