162

SEPARATION OF POWERS.

Senate alone they had made it impossible for a few States to ratify a treaty which might be objectionable to other States. It became necessary, therefore, to give the States an absolute equality in making treaties. True, Montesquieu had laid down the separation of the powers of government as a maxim, but an absolute separation was impossible.1 In the government of North Carolina2 the executive and judiciary had a negative similar to that which it was proposed to give to the President and the arrangement had been attended with the most happy effects.

The maxim meant no more than that the whole legislative, executive and judiciary powers should not be exclusively blended in any one instance. Spaight did not omit to point out the inconsistency of Anti-Federal objections to vesting the treaty-making power in the Senate instead of in the House, for the Senate represented the sovereignty of the States; and it was a certain means of preventing a consolidation of the government, if whatever might affect the States in their political capacity was left entirely to them. But McDowall, who had objected to the clause, observed at the conclusion of Spaight's explanation, that he was of the same opinion as before. And Spencer added that he thought no more argument could be used to show that the Constitution properly vested the treaty-making power.*

Equally inflexible were the objections to the judiciary. The exclusive jurisdiction of federal courts must prove oppressive in its operation. Perhaps a Bill of Rights

1 Compare Massachusetts Constitution, 1780, Part I, Article XXX; Kentucky Constitution, 1792, Article I, Sections 1 and 2, also 1799, Id.

2 New York Constitution, 1777, Article III; Elliot, V, 426. 3 Id., 123.

4 Id., 131.

might afford some check upon the power and certainly the Constitution ought to declare clearly, in order to fix the boundary between the powers of government and the rights of the people, that all powers of the States not given up to the United States were expressly and absolutely retained;1 and particularly was objection made that the Constitution contained no provision for trial by jury. Iredell, in explanation of this omission, observed that the practice in regard to jury trials varied greatly in the different States, and therefore, that the Constitution would have gained nothing by making the provision. It did not deny the right, which therefore was left as it was before. The propriety of having a Supreme Court must be obvious to every man of reflection, as otherwise there could be no way of securing a uniform administration of justice in the several States. To obviate a common grievance owing to which justice between the States was as yet impossible, the Constitution had provided a tribunal to administer equally to all. As to a Bill of Rights, he took the same ground as Wilson, Pinckney and Hamilton, that the Constitution itself was one.

But Iredell's assurance that the right of a trial by jury in civil cases was not in danger and that in criminal cases it was adequately provided for, as the trial was to take place in the State in which the crime was committed, counted for little with the Anti-Federalists like McDowall, who wished to see "everything fixed" in the Constitution.*

The opposition agreed thoroughly with Spencer that as the expression "We the people of the United States"

164

NATIONAL SUPREMACY.

showed that the new government was intended for individuals, there ought to be a Bill of Rights.1 In vain did Davie and Iredell assure their opponents that in no instance did the Constitution vest a power in the United States by which the internal policy, or administration of a State could be affected. In the provision defining the Constitution, the laws of the United States and treaties, as the supreme law of the land, Bloodworth saw the destruction of every State law that was in competition and particularly of the tender-laws of North Carolina. With the majority of the opposition, he saw no compensation in the prohibition of the States to emit bills of credit, or to pay their debts in any other money than gold or silver coin. The objection that national supremacy would destroy State sovereignty was both popular and insuperable. Davie and Iredell labored in vain to remove it. It was useless for Davie to repeat the history of the State respecting paper money, or to show that from Maine to Georgia paper emissions and tender-laws had shamefully defrauded the people.2 It seemed that the whole weight of the opposition centered upon the "sweeping clause," even Johnston, discerning Federalist as he was, declaring that he did not expect so many would object to it. The Constitution, he said, must be the supreme law of the land, otherwise it would be in the power of any one State to counteract the other States and withdraw from the Union. Without this clause the whole Constitution would be a piece of blank paper.3

Religious toleration, such as exists in the United States to-day, was unknown at the time of the formation of the Constitution. In their zeal to secure religious freedom,

RELIGIOUS TESTS.

165

sectarians did not hesitate to advocate the exclusion of men of a different creed from the right to vote or to hold office. Henry Abbott feared that by the power of making treaties, the Roman Catholic religion might be established in the United States. Though he declared himself of no exclusive establishment, he preferred the Episcopal, but certainly there was great danger in omitting some religious test, for if none was required, Deists and Mohammedans might obtain offices, and both Houses of Congress be made up of pagans. It was true the Constitution required an oath, but it did not indicate whether an official should swear by Jupiter, Minerva or Pluto.1 The very omission of a religious test, Iredell answered, indicated that the intention of the framers of the Constitution was to establish a general religious liberty in America which any discrimination between the sects would defeat. In this country no sect was superior to another. A treaty might authorize a toleration of a foreign religion, but would never establish one in America.

To the objection that the people might choose representatives without any religion, or might admit Mohammedans to office, Iredell responded that it was impossible to exclude any set of men without violating that principle of religious freedom for which the American people had always contended. One member feared lest the Pope of Rome might be elected President, an idea which Iredell confessed had never struck him before, and he intimated that if the objector had read all the qualifications of a President his fears might have been quieted. No one except a native or one who had resided in the

1 Elliot, IV, 192.

2 The third Article of the treaty with France, October 21, 1803, by which Louisiana was ceded, delared that the liberty, property and religion of the inhabitants should be protected. Treaties and Conventions, 332.

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RELIGIOUS TESTS.

country fourteen years, could be chosen President. Iredell did not know all the qualifications for a Pope, but he believed that he must be taken from a College of Cardinals and doubtless there were many previous steps necessary before he could arrive at the dignity. A native of America must have very singular good fortune, who, after residing fourteen years in his own country should go to Europe, enter into the Romish order, obtain the promotion to cardinal, afterward to that of Pope, and at length be so much in the confidence of his own country as to be elected President, and he thought it would be still more extraordinary if a Pope should resign for the Presidency. But Abbott, after expressing his thanks for the explanation which Iredell had given, observed that it did not answer his objections to an oath.

Governor Johnston, remarking that it would have been as good an argument to assert that the King of England or France or the Grand Turk could be chosen to the Presidency, as easily as the Pope of Rome, attempted to remove the delegate's fears by reviewing the distribution of religious sects in the country; thus the Congregationalists prevailed in Connecticut and Massachusetts; the Baptists, in Rhode Island; the Friends, in Pennsylvania, and the Episcopalians, in Virginia and Maryland; indeed, there were so many sects and so widely distributed, that he thought there was no cause of fear that any one religion would be established.2 Caldwell, whose profession as a clergyman of the Presbyterian church, might be supposed to have acquainted him with the spirit of toleration, insisted that danger might arise, and particularly at some future period, for the Constitution distinctly invited the Jews and the heathen to come into the country,

1 Id., 196.

2 Id., 199.