Notes on the Framing of Oaths
[ca. 8–9 Feb. 1798]
In an oath are to be distinguished 1. the formal or ceremonial parts & 2. the substance.
the 1st. dependg. on the religious opns of the party, & is to be accomodated thereto1 by the discretion of the judge.
2. the substance must have been prescribed either by the Common law, or a legislative act. a principle
the substance of the oath now under considn has not been prescribed by the Constitution
a resoln of the Senate is not a legislative act
peculiarly indelicate for the Senate to prescribe contents of their own oath.
unsafe to the citizen. if Senate may frame the oath on their honour
they might as well be trusted to try on honour
MS (DLC: TJ Papers, 6:1039); entirely in TJ’s hand; undated, but see below for date supplied.
On 8 Feb. 1798 the Senate began to consider the substance of the oath to be administered to senators when sitting for an impeachment trial. The subject was introduced three days earlier in one of the reports on impeachment procedures. Debate centered on whether a resolution could prescribe an oath or whether a legislative act was required, in which case the concurrence of the House of Representatives would be necessary. Some senators believed that this would be a check by the House on the Senate’s impeachment power. For a summary of the debate, see Melton, First Impeachment, description begins Buckner F. Melton, Jr., The First Impeachment: The Constitution’s Framers and the Case of Senator William Blount, Macon, Ga., 1998 description ends 164–9. On 9 Feb. the Senate passed a resolution prescribing the oath, in which they would swear to “do impartial justice, according to law” (JS description begins Journal of the Senate of the United States, Washington, D.C., 1820–21, 5 vols. description ends , 2:437–9).
1. Preceding two words interlined in place of “indulged.”