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the act repugnant to the Constitution because it went "to the exercise of a power not expressly granted to the General Government," and also dangerous and injurious to those states who had already gone ahead in meeting their obligations. The Senate took its time, but finally agreed on December 21. Monroe presented the resolutions and memorial in the Senate on January 13, 1791, and Madison in the House the next day. In both cases the papers were laid on the table and not disturbed later.

NORTH CAROLINA

In North Carolina there was early evidence of backsliding from the conversion that caused ratification. Exasperated by the secrecy of the Senate and the assumption of state debts, the lower house adopted in committee of the whole on November 24, 1790, a set of resolutions: "Whereas . . . With regret do we add that our Constituents and ourselves too sensibly experience the evils arising from a want of that exertion in them [the senators of the state], which if duly made, could not have failed of being highly beneficial, to this State, and might have rendered a Government adopted under many doubts and with some difficulty, better adapted to the dispositions of free men." The report "directed" the senators "to use their constant & unremitted exertions until they effect to have the doors of the Senate of the United States kept open"; to correspond regularly and constantly with the legislature and with the state executive when the legislature was not in session; to exert themselves for the publication of the Senate's journals and transmission at least once a month. They were to make their "utmost endeavours to effect œconomy in the expenditures of the public monies, and to decrease the monstrous salaries (and douceurs,) given to the public officers and others; who, however much they may be deserving of the public gratitude or liberality for the eminence of past or present services, ought only to be compensated agreeable to republican œconomy, not enriched with the bounty of regal splendour." (The funding of the states debts "by a bare majority and without the consent of the States themselves and their approbation especially had, is a new system of Legislation altogether unprecedented dangerous & unconstitutional.") Finally, they were strenuously to oppose every excise and direct tax bill.57

The printed record is evidently not exact as to the resolutions as they left the House. The parts given above in parentheses are added from the manuscript of the report, which apparently was sent up unchanged to the Senate. There it was rather radically pruned.

All the preamble was deleted, "monstrous salaries" became “enormous salaries" and "and douceurs" was cut out, as was "not enriched with the bounty of regal splendour," and all the next clause on the funding of the state debts. The House in turn referred the amended resolution to a subcommittee, which reported on December 10 a new preamble: "Whereas the secrecy of the Senate of the United States, the alarming measures of the late Session of Congress and the uniform silence observed by the Senators from this State strongly impress this General Assembly with the necessity of declaring their sentiments thereon." Otherwise the report, which the House accepted, followed the Senate changes, adding a demand for an additional mail route and for holding district and circuit courts in an additional place in the state.58 The resolutions were to be sent to the legislatures of all the states. The houses fought for several days over the changes, including a sectional one to limit the sending of the resolution to the legislatures of Virginia, South Carolina, and Georgia; but in the end, reached an agreement on December 14, based on the essentials of the subcommittee's report.

These being instructions to the senators, did not call for any presentation to Congress, as did the Virginia protest on assumption; but on December 15, 1790, the House passed resolutions condemning assumption, which "without their particular consent, is an infringement on the sovereignty of this State, and may prove eventually injurious and oppressive to the same." The legislature "did solemnly protest," and "directed" senators and representatives to exert themselves against the evil effects of the act and against any further assumption until the state accounts had been fully adjusted, "and the consent of this State shall have been first had and obtained.” However, in the Senate on the same day, the resolutions "were severally rejected," just as that body had cut out a similar protest from the other instructions.5 59

Maclaine, writing Iredell from Wilmington on November 18, 1790, said: "Our Assembly are again running riot. A great majority of them are highly exasperated with Congress for the assumption of the State debts, and they are now actually laying their heads together to defeat that measure, so far as it regards this State. . . . Mr. Hawkins, I am informed, is wholly out of favor with the Assembly. They have not the least confidence in him. How he comes to be in a worse plight than Mr. Johnston, I do not know, unless more pliancy was expected from him, than from the integrity of the other." 60 Another correspondent said that "a set of resolutions have gone forward which would disgrace a pettish school-boy of thirteen." 61 It

NORTH CAROLINA ASSERTIONS

463

was at this time that Iredell published anonymously in a Philadelphia paper a letter defending the action of Congress. He also in a private letter of April 14, 1791, called the correspondence demand ridiculous, as it would answer no purpose but to transmit the public acts, journals as printed, etc., while this was the business of others. The legislature was also failing to remember that under the Constitution Congress executed its own acts and did not leave this to the states as under the old government. The whole movement was one to get the senators to violate Senate secrecy.62 Hawkins voted in 1791 for a motion to open the doors, but Johnston did not, though he favored the motion when Monroe renewed it on March 26, 1792, in the Second Congress.

Coinciding with this incident was another in North Carolina. The superior court of the state refused a writ of certiorari from the circuit court for North Carolina, respecting a suit begun before the Constitution was in force. The refusal was made because the court was "not amenable to the authority of any other judiciatory . . . did not conceive that the suits and proceedings depending before them.. were subject to be called or taken from the said court of equity by the mandatory writ of any other court or jurisdiction whatever, much less by that of a court of inferior and limited jurisdiction." The legislature on December 15, 1790, resolved that "the General Assembly do commend and approve of the conduct of the Judges." Five members of the House registered a protest, because the action of the legislature, the matter being judicial, was irregular, the information ex parte, and "we are apprehensive any misunderstanding between the judiciary of our own state and that of the United States may disturb that harmony which ought to prevail between the members of the same family."'63

Wilson, Blair, and Rutledge issued the certiorari; Iredell avoided being included. The case was one involving British subjects; Robert Morris, who was concerned, intimated to the circuit court that he preferred, out of delicacy because of his senatorial position, to leave the cause in the state court. Evidently nothing was done about the refusal, though Iredell wrote Jay on January 17, 1792, refuting the dropping of it, and adding: "To be sure the honor of the United States is deeply concerned in their courts deciding solemnly whether the write issued erroneously, or ought to be enforced. It is of more importance that it should not go off by an act of defiance of the State Court, because the General Assembly of North Carolina thanked the State Judges for their conduct in disobeying the Writ." 64

MASSACHUSETTS

In Massachusetts instruction of the senators was also given by the General Court, but in favor instead of against assumption. Hancock in his address of June 1, 1790, to the General Court said: "I am not convinced of the propriety of the General Government's assuming to pay the debts of this Commonwealth without the request or consent of this Government: but as it will be more congenial to any system of Finance which the Congress may adopt, for this class of the creditors of this State, to transfer the demands to the General Government, on the idea of the standing credit of our Government, and to have them involved in the funded debt of the United States, than to have a claim open in favour of the Commonwealth, I recommend it to your serious deliberation, whether instructions may not be given to our Senators and Representatives on this point." 65 The answer of the General Court to this was on June 4 to instruct the senators to use every means in their power to effect the assumption, as shown in the adjoining facsimile of the resolve (see p. 466). The theory of senators representing the states while members of the lower house represented the people is marked here, as always in such instructions.

Samuel Henshaw, who was a member of the General Court, wrote Sedgwick on June 13 an explanation of the resolve:

The Instructions of this Govt. to their Senators in Congress to enforce the assumption of the State Debts, would never have passed, had they not believed from the observations of Madison & some others, that such instructions from so important a State, might influence a few doubting Members at least, to vote in favour of the proposition. Besides it was thought that such instructions would give new strength & courage to our Members, and justify them in perpetually urging the Measure. I reprobate that part of the Govr's Speech to which you allude: and thought at the time it was delivered, that if State Instructions were requisite to sanctify the assumption, it would be urged, that then Congress ought to wait untill they receive such instructions from each individual State. For if according to the Speech, Congress ought not to assume the Debt of this State without their consent, they ought not to assume the debt of any other State without their consent also. And Bacon made great use of this Idea in his opposition; and extolled the Speech as the best ever made. But it was said in Reply, that Congress ought & would, take it for granted, that no State was against the Assumption unless they instructed their Members to oppose it. And on supposition that some of the States did so instruct their Members, yet unless a Majority did it, it ought to take place. And if it does not, I would not give Six pence for either federal or State Government.66

MASSACHUSETTS INSTRUCTIONS

INCOMPLETENESS OF STATE ADJUSTMENT

465

EVIDENTLY the adjustment within the states to the principles of an over-government exercising, within its sphere, the supreme law of the land, especially in accordance with the theories of the Federalists, was not to be complete; and it is significant in the light of later history that from the first it was in the South that there was the greater lack of adaptability. Symptoms of misunderstanding and of protest or oversight are not, however, lacking elsewhere. There was a motion. before the Connecticut House on January 16, 1789, to require the senior senator from the state to transmit annually an account of national officers and their salaries. Federalism in practice would meet with many problems, not the least of which would be the duality of the obligations of the national legislators.

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