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GRAND JURY CHARGES
431 cement by an effective, not a nominal authority, that union to which, under divine Providence, we unquestionably owe all the blessings we now enjoy, and without a preservation of which we should too probably become a prey to intestine discord, and find ourselves the miserable victims of local and conflicting pursuits. . . . The very favorable accounts I have every where heard, since I have had the pleasure of being on this circuit, of the good order and respectful submission to the laws which universally prevail in it, have given me the utmost satisfaction. In addition to my own personal observations, they have impressed me with the highest respect for a people who have had the good sense so happily to combine an invincible spirit of freedom, with an enlightened regard for such a government and such laws as can alone be adequate to secure it.131
The charges of the district judges were of less importance; they were local men who presumably shared merely in the general life of the region; none the less, they were men of importance within their sphere and their charges were also of value in supplementing the more general ones of the circuit courts, and were, especially at first, also published.
THE JUSTICES AND UNIONISM
AFTER the first circuit court at Boston Gore wrote King on May 15, 1790: "The Chief Justice hath delighted the people of Massachusetts. They regret that Boston was not the place of his nativity. And his manners, they consider, so perfect as to believe that New York stole him from New England." 132 Iredell professed himself much pleased by his reception in New England. He wrote his wife from Boston on October 21, 1792: "I have constantly received the utmost distinction and courtesy here, and like Boston more and more. . . . It is scarcely possible to meet with a gentleman who is not a man of education. Such are the advantages of schools by public authority!" 133 To his brother he added on November 30, 1793: "... even Rhode Island itself, which State I am told has been principally brought over to a degree of content by the decisions and manner of doing business of the Courts of the United States, is in every respect infinitely better than it was." 134
It certainly was of political as well as of social importance as an antidote to isolation when the people of one section and a leader from another discovered their mutuality. In this respect the justices may be looked upon as martyrs of a just cause, for the burden placed upon them by the circuit riding was a very heavy and sometimes intolerable one.
THE TEXT of the Constitution made it evident that any state which came into the Union under it would have to subject itself to changes in its laws and practices or be subject to such changes by Congress. Not only were there express prohibitions placed upon the states, as there had been also by the Articles of Confederation, but while some of the powers granted to Congress might be concurrent, others were necessarily exclusive, powers which hitherto the states had exercised without restraint. Matters of such wide adjustment could not be arranged at once; many problems became apparent only with time and national development, questions of powers and prohibitions became not only matters of litigation and ultimately of epoch-making decisions by the Supreme Court, but also great matters of political division were not decided until the final appeal to arms was made. There were, however, certain interrelations that called for quick action, as they concerned the successful operation of the new govern
STATE ACTION ON THE OATH
THE supreme-law-of-the-land principle was supplemented in the Constitution by the requirement that all state legislators and officials should take an oath to support the United States Constitution. The question arose as to the practical initiation of this requirement; should the states proceed at once in the administration of it or wait for action by Congress. The matter involved not only the new oath but questions of alteration in old ones. There was in some quarters, especially in Virginia, an objection to the oath as an infringement on state sovereignty, and one of the proposed amendments by the ratification convention of New York was that national legislators and officials should be under oath not to violate or infringe the constitutions and rights of the respective states.
There were several movements in the states to anticipate the actual operation of the new general government by the oath of obedi
PROBLEMS OF FEDERAL ADJUSTMENT
433 ence to it; but in no case does this seem to have been brought to a head except in Connecticut. In the Pennsylvania General Assembly it was moved on November 1, 1788, that the members take an oath to support the Constitution of the United States. This was postponed and not taken up again. In Maryland the House of Delegates in December 1788 had a resolve for this purpose before it two or three times, but there is no record of consideration on the days assigned for it. In New Hampshire the Senate on December 30, 1788, passed a resolve that, because an alteration in oaths prescribed by the constitution of the state was necessitated by the adoption of the Constitution of the United States, such parts of the oaths inconsistent "with the nature of the Federal Government & the Oaths therein directed to be taken. . . shall be omitted" after March 4. This was a matter of alteration of the state oath rather than an oath to support the general Constitution; but the necessity of such an oath is implied in the resolve. The House nonconcurred on January 1, 1789; but concurred on February 3 in a resolve from the Senate for a joint committee to report the necessary alteration in the state oath; but nothing seems to have materialized at that session, which was the last before March 4.1 In Massachusetts on February 12, 1789, the House rejected a motion to consider the necessary measures respecting the taking by state officials of the oath to support the Constitution of the United States; but the next day a Senate resolve for a joint committee was agreed to. No further action is indicated.
In Connecticut the January session of the legislature in 1789 passed a bill that all members of the legislature and all executive and judicial officers of the state should take an oath to "support the Constitution agreed upon by the Convention of the United States and ratified by the Convention of this State."2 In October 1789 this was repealed, doubtless because of the passage of the oath act in Congress. The grand jury of the frontier Washington District of Virginia on May 2, 1789, presented as a grievance the failure of the legislature at its 1788 session to pass a law "prescribing the oath of fidelity & office under the federal government." 2a Arthur Campbell was foreman of this jury.
COMPLIANCE WITH THE OATH ACT
As we have seen, the first act passed by Congress, June 1, 1789, prescribed an oath: "I, A. B. do solemnly swear or affirm (as the case may be) that I will support the Constitution of the United States." This act prescribed that all state legislators at their next session, and all executive and judicial officers of the states hitherto chosen or to
be chosen before August 1, 1789, should take this oath within one month thereafter; and the oath should be required of all legislators and officers later chosen "before they proceed to execute the duties of their respective offices." There are various records of state compliance with this and of questions raised by it. In Pennsylvania on June 16, 1789, the president, vice president, six members of the council, secretary, and assistant secretary took the oath, and two more councilors affirmed. Councilors Smilie and Baird, both Antifederalists, "required a little more time to consider, and did not take the oath." They left the council on June 27 and were not in attendance again until August 24, when they gulped the bitter pill. Meanwhile, the oath had been given to five other councilors, not present on June 16. The justices of the state supreme court, attorney general, and prothonotary appeared before the council on July 20 and took the oath. Mayor Samuel Powel of Philadelphia was sworn on July 31. On July 23 a proclamation was issued reciting the oath act, "in order that no one may pretend ignorance of the premises, and that all persons whom it may concern may have knowledge thereof and govern themselves conformably to the said Constitution and recited act."4 On August 24, 1789, on the reconvening of the General Assembly President Mifflin administered the oath to the Speaker, and the members were also sworn.
In New York on July 7, 1789, Lieutenant Governor Pierre Van Cortlandt attended the Assembly and administered to its members the oath required by the act of Congress. In Connecticut on October 28, 1789, Samuel Bishop was appointed judge "in room of James Wadsworth Esq. as he declined taking the Oath to the Constitution of the United States." 5 This Wadsworth was one of the few known Antifederalists in the Connecticut ratification convention. The act appointing Bishop says that Wadsworth "resigned." In Massachusetts, Governor Hancock having sent the oath act to the General Court on June 25, 1789, resolves were passed to publish the act and for the taking of the oath by the legislators. In the House Abraham Fuller was appointed to administer the oath to the other members, and then Fuller was sworn in by Benjamin Lincoln. In New Hampshire on January 22, 1790, the change in the state oath attempted a year before was carried out, it being ordered by the legislature that "the words Sovereign and Independent shall be Omitted from the state oath, and confederated be substituted in lieu thereof." "
From Virginia, while there were evidently some recalcitrants, it was reported that there was a general compliance with the taking of the new constitutional oath; and the attorney general of the state,
435 James Innes, gave his opinion on March 20, 1790, that all magistrates chosen before August 1, 1789, must take the oath as well as those later chosen, "regardless of the laws and Constitutions of the several individual states."7 Some of the state legislatures went through the supererogatory action of reenacting the congressional oath act, for instance, New Hampshire on June 17, 1789; perhaps, as Stephens states, because of the persistance of the theory of their intermediation between the general government and the people.
North Carolina did not ratify until after the oath act became law; and on December 9, 1790, the lower house refused by a vote of 55 to 26 to adopt a resolution for the taking of the oath prescribed by Congress on the part of the members of the General Assembly and the governor. However, there was a complete change of sentiment before the next legislature met on December 5, 1791. Then the members of the House of Commons went, before assembling, into an informal committee on the oath question and decided to modify the state oath they should take to "I, A. B. . . . swear that I will be faithful and bear due allegiance to the state of North-Carolina, and to the powers and authority which are or may be established for the government thereof, not inconsistent with the constitution of the United States and this state." 8 On December 6, after organizing and taking the above oath, the House "Resolved, That the Speaker and members of this house take the oath, prescribed by the act of the Congress of the United States . . . previous . previous to entering on business." 29 The Senate did not follow suit at that time, so far as the record shows, though later in the session there is reference to such action by the "General Assembly" on convening; but on December 7 the higher house suggested a committee to bring in a bill on the oaths. This, after the usual swings from house to house then prescribed, was finally passed on December 16. It required a state oath very similar to that taken by the House at the beginning of the session, and section 2 ordered that all members of the General Assembly and all officials take the oath prescribed by Congress. The Rhode Island head officials and legislators took the oath at the beginning of the June 1790 session, immediately after ratification, and the General Assembly requested the governor to issue a proclamation for all other executives and judicial officers to do likewise.
NATIONAL AND STATE OFFICE HOLDING
IT WAS not unusual for prominent men in the states to be pluralists, and holding of state offices simultaneously with membership in