James Madison

CHAPTER IV

The position was hardly less conspicuous or less influential than that which he had held in the national Congress. What each State might do was of quite as much importance as anything the federal government might or could do. Congress could neither open nor close a single port in Virginia to commerce, whether domestic or foreign, without the consent of the State; it could not levy a tax of a penny on anything, whether goods coming in or products going out, if the State objected. As a member of Congress, Mr. Madison might propose or oppose any of these things; as a member of the Virginia House of Delegates, he might, if his influence was strong enough, carry or forbid any or all of them, whatever might be the wishes of Congress. It was in the power of Virginia to influence largely the welfare of her neighbors, so far as it depended upon commerce, and indirectly that of every State in the Union.

In the Assembly, as in Congress, Mr. Madison's aim was to increase the powers of the federal government, for want of which it was rapidly sinking into imbecility and contempt. "I acceded," he says, "to the desire of my fellow-citizens of the county that I should be one of its representatives in the legislature," to bring about "a rescue of the Union and the blessings of liberty staked on it from an impending catastrophe." Early in the session the Assembly assented to the amendment to the Articles of Confederation proposed at the late session of Congress, which substituted population for a land valuation as the basis of representation and of taxation. The Assembly also asserted that all requisitions upon the States for the support of the general government and to provide for the public debt should be complied with, and payment of balances on old accounts should be enforced; and it assented to the recommendation of Congress that that body should have power for a limited period to control the trade with foreign nations having no treaty with the United States, in order that it might retaliate upon Great Britain for excluding American ships from her West India colonies. All these measures were designed for "the rescue of the Union," and they had, of course, Madison's hearty support. For it was absolutely essential, as he believed, that something should be done if the Union was to be saved, or to be made worth saving. But there were obstacles on all sides. The commercial States were reluctant to surrender the control over trade to Congress; in the planting States there was hardly any trade that could be surrendered. In Virginia the tobacco planter still clung to the old ways. He liked to have the English ship take his tobacco from the river bank of his own plantation, and to receive from the same vessel such coarse goods as were needed to clothe his slaves, with the more expensive luxuries for his own family,—dry goods for his wife and daughter; the pipe of madeira, the coats and breeches, the hats, boots, and saddles for himself and his sons. He knew that this year's crop went to pay—if it did pay—for last year's goods, and that he was always in debt. But the debt was on running account, and did not matter. The London factor was skillful in charges for interest and commissions, and the account for this year was always a lien on next year's crop. He knew, and the planter knew, that the tobacco could be sold at a higher price in New York or Philadelphia than the factor got, or seemed to get, for it in London; that the goods sent out in exchange were charged at a higher price than they could be bought for in the Northern towns. Nevertheless, the planter liked to see his own hogsheads rolled on board ship by his own negroes at his own wharf, and receive in return his own boxes and bales shipped direct from London at his own order, let it cost what it might. It was a shiftless and ruinous system; but the average Virginia planter was not over-quick at figures, nor even at reading and writing. He was proud of being lord of a thousand or two acres, and one or two hundred negroes, and fancied that this was to rule over, as Mr. Rives called it, "a mimic commonwealth, with its foreign and domestic relations, and its regular administrative hierarchy." He did not comprehend that the isolated life of a slave plantation was ordinarily only a kind of perpetual barbecue, with its rough sports and vacuous leisure, where the roasted ox was largely wasted and not always pleasant to look at. There was a rude hospitality, where food, provided by unpaid labor, was cheap and abundant, and where the host was always glad to welcome any guest who would relieve him of his own tediousness; but there was little luxury and no refinement where there was almost no culture. Of course there were a few homes and families of another order, where the women were refined and the men educated; but these were the exceptions. Society generally, with its bluff, loud, self-confident but ignorant planters, its numerous poor whites destitute of lands and of slaves, and its mass of slaves whose aim in life was to avoid work and escape the whip, was necessarily only one remove from semi-civilization.

It was not easy to indoctrinate such a people, more arrogant than intelligent, with new ideas. By the same token it might be possible to lead them into new ways before they would find out whither they were going. Mr. Madison hoped to change the wretched system of plantation commerce by a port bill, which he brought into the Assembly. Imposts require custom-houses, and obviously there could not be custom-houses nor even custom-officers on every plantation in the State. The bill proposed to leave open two ports of entry for all foreign ships. It would greatly simplify matters if all the foreign trade of the State could be limited to these two ports only. It would then be easy enough to enforce imposts, and the State would have something to surrender to the federal government to help it to a revenue, if, happily, the time should ever come when all the States should assent to that measure of salvation for the Union. Not that this was the primary object of those who favored this port law; but the question of commerce was the question on which everything hinged, and its regulation in each State must needs have an influence, one way or the other, upon the possibility of strengthening, even of preserving, the Union. Everything depended upon reconciling these state interests by mutual concessions. The South was jealous of the North, because trade flourished at the North and did not flourish at the South. It seemed as if this was at the expense of the South, and so, in a certain sense, it was. The problem was to find where the difficulty lay, and to apply the remedy.

If commerce flourished at the North, where each of the States had one or two ports of entry only, why should it not flourish in Virginia if regulated in the same way? If those centres of trade bred a race of merchants, who built their own ships, bought and sold, did their own carrying, competed with and stimulated each other, and encroached upon the trade of the South, why should not similar results follow in Virginia if she should confine her trade to two or three ports? If the buyer and the seller, the importer and the consumer, went to a common place of exchange in Philadelphia, New York, and Boston, and prosperity followed as a consequence, why should they not do the same thing at Norfolk? This was what Madison aimed to bring about by the port bill. But it was impossible to get it through the legislature till three more ports were added to the two which the bill at first proposed. When the planters came to understand that such a law would take away their cherished privilege of trade along the banks of the rivers, wherever anybody chose to run out a little jetty, the opposition was persistent. At every succeeding session, till the new federal Constitution was adopted, an attempt was made to repeal the act; and though that was not successful, each year new ports of entry were added. It did not, indeed, matter much whether the open ports of Virginia were two or whether they were twenty. There was a factor in the problem which neither Mr. Madison nor anybody else would take into the account. It was possible, of course, if force enough were used, to break up the traffic with English ships on the banks of the rivers; but when that was done, commerce would follow its own laws, in spite of the acts of the legislature, and flow into channels of its own choosing. It was not possible to transmute a planting State, where labor was enslaved, into a commercial State, where labor must be free.

However desirous Mr. Madison might be to transfer the power over commerce to the federal government, he was compelled, as a member of the Virginia legislature, to care first for the trade of his own State. No State could afford to neglect its own commercial interests so long as the thirteen States remained thirteen commercial rivals. It was becoming plainer and plainer every day that, while that relation continued, the less chance there was that thirteen petty, independent States could unite into one great nation. No foreign power would make a treaty with a government which could not enforce that treaty among its own people. Neither could any separate portion of that people make a treaty, as any other portion, the other side of an imaginary line, need not hold it in respect. What good was there in revenue laws, or, indeed, in any other laws in Massachusetts which Connecticut and Rhode Island disregarded? or in New York, if New Jersey and Pennsylvania laughed at them? or in Virginia, if Maryland held them in contempt?

But Mr. Madison felt that, if he could bring about a healthful state of things in the trade of his own State, there was at least so much done towards bringing about a healthful state of things in the commerce of the whole country. There came up a practical, local question which, when the time came, he was quick to see had a logical bearing upon the general question. The Potomac was the boundary line between Virginia and Maryland; but Lord Baltimore's charter gave to Maryland jurisdiction over the river to the Virginia bank; and this right Virginia had recognized, claiming only for herself the free navigation of the Potomac and the Pocomoke. Of course the laws of neither State were regarded when it was worth while to evade them; and nothing was easier than to evade them, since to the average human mind there is no privilege so precious as a facility for smuggling. Nobody, at any rate, seems to have thought anything about the matter till it came under Madison's observation after his return home from Congress. To him it meant something more than mere evasion of state laws and frauds on the state revenue. The subject fell into line with his reflections upon the looseness of the bonds that held the States together, and how unlikely it was that they would ever grow into a respectable or prosperous nation while their present relations continued. Virtually there was no maritime law on the Potomac, and hardly even the pretense of any. What could be more absurd than to provide ports of entry on one bank of a river, while on the other bank, from the source to the sea, the whole country was free to all comers? If the laws of either State were to be regarded on the opposite bank, a treaty was as necessary between them as between any two contiguous states in Europe.

Madison wrote to Jefferson, who was now a delegate in Congress, pointing out this anomalous condition of things on the Potomac, and suggesting that he should confer with the Maryland delegates upon the subject. The proposal met with Jefferson's approbation; he sought an interview with Mr. Stone, a delegate from Maryland, and, as he wrote to Madison, "finding him of the same opinion, [I] have told him I would, by letters, bring the subject forward on our part. They will consider it, therefore, as originated by this conversation." Why "they" should not have been permitted to "consider it as originated" from Madison's suggestion that Jefferson should have such a conversation is not quite plain; for it was Madison, not Jefferson, who had discovered that here was a wrong that ought to be righted, and who had proposed that each State should appoint commissioners to look into the matter and apply a remedy. So, also, so far as subsequent negotiation on this subject had any influence in bringing about the Constitutional Convention of 1787, it was only because Mr. Madison, having suggested the first practical step in the one case, seized an opportune moment in that negotiation to suggest a similar practical step in the other case. As it is so often said that the Annapolis Convention of 1786 was the direct result of the discussion of the Potomac question, it is worth while to explain what they really had to do with each other.

The Virginia commissioners were appointed early in the session on Mr. Madison's motion. Maryland moved more slowly, and it was not till the spring of 1785 that the commissioners met. They soon found that any efficient jurisdiction over the Potomac involved more interests than they, or those who appointed them, had considered. Existing difficulties might be disposed of by agreeing upon uniform duties in the two States, and this the commissioners recommended. But when the subject came before the Maryland legislature it took a wider range.

The Potomac Company, of which Washington was president, had been chartered only a few months before. The work it proposed to do was to make the upper Potomac navigable, and to connect it by a good road with the Ohio River. This was to encourage the settlement of Western lands. Another company was chartered about the same time to connect the Potomac and Delaware by a canal, where interstate traffic would be more immediate. Pennsylvania and Delaware must necessarily have a deep interest in both these projects, and the Maryland legislature proposed that those States be invited to appoint commissioners to act with those whom Maryland and Virginia had already appointed to settle the conflict between them upon the question of jurisdiction on the Potomac. Then it occurred to somebody: if four States can confer, why should not thirteen? The Maryland legislature thereupon suggested that all the States be invited to send delegates to a convention to take up the whole question of American commerce.

While this was going on in Maryland, the Virginia legislature was considering petitions from the principal ports of the State praying that some remedy might be devised for the commercial evils from which they were all suffering. The port bill had manifestly proved a failure. It was only a few weeks before that Madison had complained, in a letter to a friend, that "the trade of the country is in a most deplorable condition;" that the most "shameful frauds" were committed by the English merchants upon those in Virginia, as well as upon the planters who shipped their own tobacco; that the difference in the price of tobacco at Philadelphia and in Virginia was from eleven shillings to fourteen shillings in favor of the Northern ports; and that "the price of merchandise here is, at least, as much above, as that of tobacco is below, the Northern standard." He was only the more confirmed in his opinion that there was no cure for these radical evils except to surrender to the confederate government complete control over commerce. The debate upon these petitions was hot and long. It brought out the strongest men on both sides, Madison leading those who wished to give to Congress the power to regulate trade with foreign countries when no treaty existed; to make uniform commercial laws for all the States; and to levy an impost of five per cent. on imported merchandise, as a provision for the public debt and for the support of the federal government generally. A committee, of which he was a member, at length reported instructions to the delegates of the State in Congress to labor for the consent of all the States to these propositions. But in Committee of the Whole the resolutions were so changed and qualified—especially in limiting to thirteen years the period for which Congress was to be intrusted with a power so essential to the existence of the government—that the measure was given up by its friends as hopeless.

But before the report was disposed of Mr. Madison prepared a resolution, to be offered as a substitute, with the hope of reaching the same end in another way. This resolution provided for the appointment of five commissioners,—Madison to be one of them,—"who, or any three of whom, shall meet such commissioners as may be appointed in the other States of the Union, at a time and place to be agreed on, to take into consideration the trade of the United States; to examine the relative situations and trade of said States; to consider how far a uniform system in their commercial regulations may be necessary to their common interest and their permanent harmony; and to report to the several States such an act, relative to this great object, as, when unanimously ratified by them, will enable the United States, in Congress, effectually to provide for the same." This he was careful not to offer himself, but, as he says, it was "introduced by Mr. Tyler, an influential member, who, having never served in Congress, had more the ear of the House than those whose services there exposed them to an imputable bias." He adds that "it was so little acceptable that it was not then persisted in."

About the same time the action of the Maryland legislature on the Potomac question, and the report of the Potomac commissioners, came up for consideration. Mr. Madison said afterward that, as Maryland thought the concurrence of Pennsylvania and Delaware were necessary to the regulation of trade on that river, so those States would, probably, wish to ask for the concurrence of their neighbors in any proposed arrangement. "So apt and forcible an illustration," he adds, "of the necessity of an uniformity throughout all the States could not but favor the passage of a resolution which proposed a convention having that for its object."

As one of the Potomac commissioners, he knew, of course, what was coming from Maryland, and "how apt and forcible an illustration" it would seem, when it did come, of that resolution which he had written and had induced Mr. Tyler to offer. It did not matter that the resolution had been at the moment "so little acceptable," and therefore "not then persisted in." It was where it was sure, in the political slang of our day, to do the most good. And so it came about. All that Maryland had proposed, growing out of the consideration of the Potomac question, the Virginia legislature acceded to. Then, on the last day of the session, the Madison-Tyler resolution was taken from the table, where it had lain quietly for nearly two months, and passed. If some, who had been contending all winter against any action which should lead to a possibility of strengthening the federal government, failed to see how important a step they had taken to that very end; if any, who were fearful of federal usurpation and tenacious of state rights, were blind to the fact that the resolution had pushed aside the Potomac question and put the Union question in its place, Mr. Madison, we may be sure, was not one of that number. He had gained that for which he had been striving for years.

The commissioners appointed by the resolution soon came together. They appointed Annapolis as the place, and the second Monday of the following September (1786) as the time, of the proposed national convention; and they sent to all the other States an invitation to send delegates to that convention.

On September 11 commissioners from Virginia, Delaware, Pennsylvania, New Jersey, and New York assembled at Annapolis. Others had been appointed by North Carolina, Rhode Island, Massachusetts, and New Hampshire, but they were not present. Georgia, South Carolina, Maryland, and Connecticut had taken no action upon the subject. As five States only were represented, the commissioners "did not conceive it advisable to proceed on the business of their mission," but they adopted an address, written by Alexander Hamilton, to be sent to all the States.

All the represented States, the address said, had authorized their commissioners "to take into consideration the trade and commerce of the United States; to consider how far an uniform system in their commercial intercourse and regulations might be necessary to their common interest and permanent harmony." But New Jersey had gone farther than this; her delegates were instructed "to consider how far an uniform system in their commercial regulations and other important matters might be necessary to the common interest and permanent harmony of the several States." This, the commissioners present thought, "was an improvement on the original plan, and will deserve to be incorporated into that of a future convention." They gave their reasons at length for this opinion, and, in conclusion, urged that commissioners from all the States be appointed to meet in convention at Philadelphia on the second Monday of the following May (1787), "to devise such further provisions as shall appear to them necessary to render the Constitution of the federal government adequate to the exigencies of the Union."

In the course of the winter delegates to this convention were chosen by the several States. Virginia was the first to choose her delegates; Madison was among them, and at their head was George Washington.

CHAPTER V

That the Annapolis Convention ever met to make smooth the way for the more important one which came together eight months afterward and framed a permanent Constitution for the United States was unquestionably due to the persistence and the political adroitness of Mr. Madison. But it was not exceptional work. The same diligence and devotion to public duty mark the whole of this period of three years through which he continued a member of the state legislature. As chairman of the judiciary committee he reduced with much labor the old colonial statutes to a body of laws befitting the condition of free citizens in an independent State. From his first to his last session he contended, though without success, for the faith of treaties and the honest payment of debts. The treaty with England provided that there should be "no lawful impediment on either side to the recovery of debts heretofore contracted." The legislature notified Congress that it should disregard this provision, on the plea that in relation to "slaves and other property" it had not been observed by Great Britain. Mr. Madison did not then know that—as he said three years later—"the infractions [of the treaty] on the part of the United States preceded even the violation on the other side in the instance of the negroes." He maintained, nevertheless, that the settlement of the difficulty, if it had any real foundation, belonged to Congress, the party to the treaty, and not to a State which had surrendered the treaty-making power; and that in common honesty one planter was not relieved from his obligation to pay a London merchant for goods and merchandise received before the war, because other planters had not been paid for the negroes and horses they had lost when the British troops invaded Virginia. At each of the three sessions of the legislature, while he was a member, he tried to bring that body to adopt some line of conduct which should not—to use his own words—"extremely dishonor us and embarrass Congress." It was useless; the repudiators were quite deaf to any appeals either to their honor or their patriotism.

On another question both he and his State were more fortunate. Religious freedom had to be once more fought for, and he was quick to come to the defense of a right which had first called forth his youthful enthusiasm. Two measures were brought forward from session to session to secure for the church the support of the state. The first was a bill for the incorporation of religious societies; but when it was pushed to its final passage it provided for the incorporation of Episcopal churches only. For this Mr. Madison consented to vote, though with reluctance, in the hope that the church party would be so far satisfied with this measure as to abstain from pushing another which was still more objectionable.

He was disappointed. Naturally those who had carried their first point were the more, not the less, anxious for further success. Now it was insisted that there should be a universal tax "for the support of teachers of the Christian religion." The tax-payer was to be permitted to name the religious society for the support of which he preferred to contribute. If he declined this voluntary acquiescence in the law, the money would be used in aid of a school; but from the tax itself none were to be exempt on any pretext. Madison was quick to see in such a law the possibility of religious intolerance, of compulsory uniformity enforced by the civil power, and of the suppression of any freedom of conscience or opinion. The act did not define who were and who were not "teachers of the Christian religion," and that necessarily would be left to the courts to decide. A state church would be the inevitable consequence; for it was not to be supposed that any dominant sect would rest till it secured the recognition by law of its own denomination as the sole representative of the Christian religion. To expect anything else was to ignore the teachings of all history.

The burden of opposition and debate fell, at first, almost solely upon Madison. Some of the wisest and best men of the State were slow to see, as he saw, that religious freedom was in danger from such legislation. There was, it was said, a sad falling-off in public morality as indifference to religion increased. There was no cure, it was declared, for prevalent and growing corruption except in the culture of the religious sentiment, and the teachers of religion, therefore, must be upheld and supported. But granting all this, Madison saw that the proposed remedy would be to give, not bread but a stone, and a stone that would be used in return as a weapon. It was impossible to regulate religious belief by act of the Assembly, and therefore it was worse than foolish to try.

It was due to him that the question was postponed from one session to the next. A copy of the bill was sent, meanwhile, into every county of the State for the consideration of the people, and that was aided by a "Memorial and Remonstrance," written by Madison, which was circulated everywhere for signature, in readiness for presentation to the next legislature. The bill, the memorial said, would be "a dangerous abuse of power," and the signers protested against it with unanswerable arguments, taking for a starting-point the assertion of the Bill of Rights, "that religion, or the duty we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence." It is not at all improbable that many signed this remonstrance, not so much because they believed it to be true as because it was a protest against a tax; that others were more moved by jealousy of the power of the Episcopal Church than they were by anxiety to protect religious liberty outside of their own sects. But whatever the motives, the movement was too formidable to be disregarded. It was made a test question in the election of members for the legislature of 1785-86; at that session the bill for the support of religious teachers was rejected, and in place of it was passed "an act for establishing religious freedom," written by Jefferson seven years before. This provided "that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities."[8]

In the memorial and remonstrance Madison had said: "If this freedom be abused, it is an offense against God, not against man. To God, therefore, not to man, must an account of it be rendered." If the people of Virginia did not clearly comprehend this doctrine in all its length and breadth a hundred years ago, it is not quite easy to say who were then, or who are now, at liberty to throw stones at them. The assertion of the broadest religious freedom was no more new then than it is true that persecution for opinion's sake is now only an ancient evil. It was not till fifty years after Virginia had refused to tax her citizens for the support of religious teachers that Massachusetts repealed the law that had long imposed a similar burden upon her people.

It was in 1786, the last year of Madison's service in the Virginia Assembly before he returned to Congress, that the craze of paper money broke out again through all the States. The measure was carried in most of them, followed in the end by the usual disastrous consequences. Madison's anxiety was great lest his own State should be carried away by this delusion, and he led the opposition against some petitions sent to the Assembly praying for an issue of currency. The vote against it was too large to be due altogether to his influence; but he gave great strength and concentration to the opposition. In Virginia, tobacco certificates supplied in some measure the want of a circulating medium, and it was, therefore, easier there than in some of the other States to resist the clamor for a paper substitute for real money. A tobacco certificate at least represented something worth money. Madison assented to a bill which authorized the use of such certificates. But his "acquiescence," he wrote to Washington, "was extorted by a fear that some greater evil, under the name of relief to the people, would be substituted." He was "far from being sure," he added, that he "did right." But no evils with which he had to reproach himself followed that measure.

These three years of his life were probably among the happiest, if they were not altogether the happiest, in his long public career. There was little disappointment or anxiety, and evidently much genuine satisfaction as he saw how certainly he was gaining a high place in the estimation of his fellow-citizens for his devotion to the best interests of his native State. In the recesses of the legislature he had leisure for studies in which he evidently found great contentment. He traveled a good deal at intervals, especially at the North; learned much of the resources and character of the people outside of Virginia, and became acquainted with the leading men among them. Jefferson urged him to pass a summer with him in Paris; and some foreign diplomatic service was open to him, had he expressed a willingness to accept it. But he preferred to know something more of his own country while he had the leisure; and if his life was to be passed in public service, as now seemed probable to him, he chose, at least for the present, to serve his country at home, where he thought he was more needed, rather than abroad. In his orders for books sent to Jefferson the direction of his studies is evident. He sought largely for those which treated of the science of government; but they were not confined to that subject. Natural history had great charms for him. He was a diligent student of Buffon, and was anxious to find, if possible, the plates of his thirty-one volumes, in colors, that he might adorn the walls of his room with them. He made careful comparisons between the animals of other continents, as described and portrayed by the naturalist, and similar orders in America. All new inventions interested him. "I am so pleased," he writes, "with the new invented lamp that I shall not grudge two guineas for one of them." He had seen "a pocket compass of somewhat larger diameter than a watch, and which may be carried in the same way. It has a spring for stopping the vibration of the needle when not in use. One of these would be very convenient in case of a ramble into the western country." A small telescope, he suggests, might be fitted on as a handle to a cane, which might "be a source of many little gratifications," when "in walks for exercise or amusement objects present themselves which it might be matter of curiosity to inspect, but which it was difficult or impossible to approach." Jefferson writes him of a new invention, a pedometer; and he wants one for his own pocket. Trifles like these show the bent of his mind; and they show a contented mind as well.

While writing of important acts of the legislature of 1785, he is careful to give other information in a letter to Jefferson, which is not uninteresting as written ninety-eight years ago, and written by him.

This intelligence was evidently not unheeded by Jefferson. In writing, some months after he received it, to a friend on the application of steam-power to grist-mills, then lately introduced in England, he adds: "I hear you are applying the same agent in America to navigate boats, and I have little doubt but that it will be applied generally to machines, so as to supersede the use of water-ponds, and of course to lay open all the streams for navigation." Nor does Madison seem to have been one of those who doubted if anything was to come of Rumsey's invention. All this was less than a hundred years ago, and now there is a steam-ferry between New York and Europe running about twice a day.

In a similar letter, a year later, he is careful, among grave political matters, to remember and report to the same friend that in the sinking of a well in Richmond, on the declivity of a hill, there had been found, "about seventy feet below the surface, several large bones, apparently belonging to a fish not less than the shark; and, what is more singular, several fragments of potter's ware in the style of the Indians. Before he [the digger] reached these curiosities he passed through about fifty feet of soft blue clay." Mr. Madison had only just heard of this discovery, and he had not seen the unearthed fragments. But he evidently accepts the story as true in coming from "unexceptionable witnesses." He adds, as a corroboration, that he is told by a friend from Washington County of the finding there, in the sinking of a salt-well, "of the hip-bone of the incognitum, the socket of which was about eight inches in diameter." Such things were peculiarly interesting to Jefferson, and Madison was too devoted a friend to him to leave them unnoticed. But they were hardly less interesting to himself, though he had not much of Jefferson's habit of scientific investigation. That "the potter's ware in the style of the Indians" should be found so deeply buried only seems to him "singular;" nor, indeed, is there any record, so far as we know, that this particular fact was any more suggestive to Jefferson, though apparently so likely to arouse his inquiring mind to seek for some satisfactory explanation. But his geological notions were too positive to admit even of a doubt as to the age of man. Supposing a Creator, he assumed that "he created the earth at once, nearly in the state in which we see it, fit for the preservation of the beings he placed on it." Theorist as he was himself, he had little patience with the other theorists who were already beginning to discover in the structure of the earth the evidence of successive geological eras. The different strata of rocks and their inclination gave him no trouble. He explained them all by the assumption that "rock grows, and it seems that it grows in layers in every direction, as the branches of trees grow in all directions." That evidences of the existence of man should be found with a superimposed weight of earth seventy feet in thickness would present to him no difficulty. If the fact had specially aroused his attention he would have explained it in some ingenious way as the result of accident.

CHAPTER VI

Madison's ideal still was, the Union before the States, and for the sake of the States; the whole before the parts, to save the parts; the binding the fagot together that the sticks might not be lost. "Our situation," he wrote to Edmund Randolph in February, "is becoming every day more and more critical. No money comes into the federal treasury; no respect is paid to the federal authority; and people of reflection unanimously agree that the existing Confederacy is tottering to its foundation. Many individuals of weight, particularly in the eastern district, are suspected of leaning toward monarchy. Other individuals predict a partition of the States into two or more confederacies. It is pretty certain that if some radical amendment of the single one cannot be devised and introduced, one or the other of these revolutions, the latter no doubt, will take place."

It is not impossible that Madison himself may have had some faith in this suspicion that "individuals of weight in the eastern district" were inclined to a monarchy. For such suspicion, however there could be little real foundation. There were, doubtless, men of weight who thought and said that monarchy was better than anarchy. There were, doubtless, impatient men then who thought and said, as there are impatient men now who think and say, that the rule of a king is better than the rule of the people. But there was no disloyalty to government by the people among those who only maintained that the English in America must draw from the common heritage of English institutions and English law the material wherewith to build up the foundations of a new nation. No intelligent and candid man doubts now that they were wise; nor would it have been long doubted then, had it not so speedily become manifest that, if the stigma of "British" was once affixed to a political party, any appeal from popular prejudice to reason and common sense was hopeless.

There were a few persons who would have done away with the divisions of States and establish in their place a central government. Those most earnest in maintaining the autonomy of States declared that such a government was, as Luther Martin of Maryland called it, of "a monarchical nature." What else could that be but a monarchy? An insinuation took on the form of a logical deduction and became a popular fallacy. Yet those most earnest for a central government only sought to establish a stable rule in place of no rule at all; or, worse still, of the tyranny of an ignorant and vicious mob under the outraged name of democracy, into which there was danger of drifting. Whether their plan was wise or foolish, it did not mean a monarchy. Even of Shays's misguided followers Jefferson said: "I believe you may be assured that an idea or desire of returning to anything like their ancient government never entered into their heads." As Madison knew and said, the real danger was that the States would divide into two confederacies, and only by a new and wiser and stronger union could that calamity be averted.

To gain the assent of most of the States to a convention was surmounting only the least of the difficulties. Three weeks before the time of meeting Madison wrote: "The nearer the crisis approaches, the more I tremble for the issue. The necessity of gaining the concurrence of the convention in some system that will answer the purpose, the subsequent approbation of Congress, and the final sanction of the States, present a series of chances which would inspire despair in any case where the alternative was less formidable." He said, in the first month of the session of that body, that "the States were divided into different interests, not by their difference of size, but by other circumstances; the most material of which resulted partly from climate, but principally from the effects of their having or not having slaves. These two causes concurred in forming the great division of interests in the United States. It did not lie between the large and small States. It lay between the Northern and Southern."

During the earlier weeks of this session of Congress, and, indeed, for some months before, events had made so manifest this difference of interest, coincident with the difference in latitude, that there seemed little ground for hope that any good would come out of a constitutional convention. The old question of the navigation of the Mississippi was again agitated. The South held her right to that river to be of much more value than anything she could gain by a closer union with the North, and she was quite ready to go to war with Spain in defense of it. On the other hand, the Northern States were quite indifferent to the navigation of the Mississippi, and not disposed apparently to make any exertion or sacrifice to secure it. Just now they were anxious to secure a commercial treaty with Spain; but Spain insisted, as a preliminary condition, that the United States should relinquish all claim to navigation upon a river whose mouths were within Spanish territory. In the Northern mind there was no doubt of the value of trade with Spain; and there was a good deal of doubt whether there was anything worth contending for in the right to sail upon a river running through a wilderness where, as yet, there were few inhabitants, and hardly any trade worth talking about. More than that, there was unquestionably a not uncommon belief at the North and East that the settlement and prosperity of the West would be at the expense of the Atlantic States. Perhaps that view of the matter was not loudly insisted upon; but many were none the less persuaded that, if population was attracted westward by the hope of acquiring rich and cheap lands, prosperity and power would go with it. At any rate, those of this way of thinking were not inclined to forego a certain good for that which would profit them nothing, and might do them lasting harm.

For these reasons, spoken and unspoken, the Northern members of Congress were at first quite willing, for the sake of a commercial treaty, to concede to Spain the exclusive control of the Mississippi. But to pacify the South it was proposed that the concession to Spain should be for only five and twenty years. If at the end of that period the navigation of the Mississippi should be worth contending for, the question could be reopened. The South was, of course, rather exasperated than pacified by such a proposition. The navigation of the river had not only a certain value to them now, but it was theirs by right, and that was reason enough for not parting with it even for a limited period. Concessions now would make the reassertion of the right the more difficult by and by. If it must be fought for, it would lessen the chance of success to put off the fighting five and twenty years. Indeed, it could not be put off, for war was already begun in a small way. The Spaniards had seized American boats on trading voyages down the river, and the Americans had retaliated upon some petty Spanish settlements. Spain, moreover, seemed at first no more inclined to listen to compromise than the South was.

England watched this controversy with interest. She had no expectation of recovering for herself the Floridas, which she had lost in the war of the Revolution, and had finally ceded to Spain by the treaty of 1783; but she was quite willing to see that power get into trouble on the Mississippi question, and more than willing that it should threaten the peace and union of the States. Her own boundary line west of the Alleghanies might possibly be extended far south of the Great Lakes, if the Northern and Southern States should divide into two confederacies; but, apart from any lust of territory, she rejoiced at anything that threatened to check the growth of her late colonies.

Fortunately, however, the question was disposed of, before the Constitutional Convention met at Philadelphia, by the failure to secure a treaty. The Spanish minister, Guardoqui, consented, at length, after long resistance, to accept as a compromise the navigation of the river for five and twenty years; but Mr. Jay, who was willing, could he have had his way, to concede anything, found at that stage of the negotiations he could not command votes enough in Congress to secure a treaty even in that modified form. Hitherto he had relied upon a resolution passed by Congress in August, 1786, by the vote of seven Northern States against five Southern. This, it was assumed, repealed a resolution of the year before, and authorized the secretary to make a treaty. The resolution of the year before, August, 1785, had been passed by the votes of nine States, and was in confirmation of a provision of the Articles of Confederation declaring that "no treaties with foreign powers should be entered into but by the assent of nine States." The minority contended that such a resolution could not be repealed by the vote of only seven States, for that would be to violate a fundamental condition of the Articles of Confederation. It is easy to see now that there ought not to have been a difference among honorable men on such a point as that. Nevertheless Mr. Jay, supported by some of the strongest Northern men, held that the votes of seven States could be made, in a roundabout way, to authorize an act which the Constitution declared should never be lawful except with the assent of nine States. So the secretary went on with his negotiations and came to terms with the Spanish minister.

In April the secretary was called upon to report to Congress what was the position of these negotiations. Then it first publicly appeared that a treaty was actually agreed upon which gave up the right to the Mississippi for a quarter of a century. But it was also speedily made plain by various parliamentary motions that the seven votes, which the friends of such a treaty had relied upon, had fallen from seven—even could that number in the end have been of use—to, at best, four. The New Jersey delegates had been instructed not to consent to the surrender of the American right to the use of the Mississippi; a new delegate from Pennsylvania had changed the vote of that State; and Rhode Island had also gone over to the other side. "It was considered, on the whole," wrote Madison, "that the project for shutting the Mississippi was at an end."

These details are not unimportant. Forty-five years afterward Madison wrote that "his main object, in returning to Congress at this time, was to bring about, if possible, the canceling of Mr. Jay's project for shutting the Mississippi." Probably it had occurred to nobody then that within less than twenty years the Province of Louisiana would belong to the United States, when their right to the navigation of the river could be no longer disputed. But so long as both its banks from the thirty-first degree of latitude southward to the Gulf remained foreign territory, it was of the last importance to the Southern States, whose territory extended to the Mississippi, that the right of way should not be surrendered. If a treaty with Spain could be carried that gave up this right, and the Southern States should be compelled to choose between the loss of the Mississippi and the loss of the Union, there could be little doubt as to what their choice would be. It was not a question to be postponed till after the Philadelphia Convention had convened; if not disposed of before, the convention might as well not meet.

Madison's letters, while the question was pending, show great anxiety. He was glad to know that the South was of one mind on this subject and would not yield an inch. He was quite confident that his own State would take the lead, as she soon did, in the firm avowal of Southern opinion. But he rejoiced that the question did not come up in the Virginia legislature till after the act was passed to send delegates to the Philadelphia Convention. That he looked upon as a point gained, and the delegates were presently appointed; but he still despaired of any good coming of the convention, unless "Mr. Jay's project for shutting the Mississippi" could be first got rid of.

In a recent work[9] Mr. Madison is represented as having "struck a bargain" with the Kentucky delegates to the Virginia Assembly, agreeing to speak on behalf of a petition relating to the Mississippi question, provided the delegates from Kentucky—then a part of Virginia—would vote for the representation of Virginia at Philadelphia. A "bargain" implies an exchange of one thing for another, and Madison had no convictions in favor of closing the Mississippi to exchange for a service rendered on behalf of a measure for which he wished to secure votes. Moreover, no bargain was necessary. It was not easy to find anybody in Virginia who needed to be persuaded that the right to the Mississippi must not be surrendered. Madison wrote to Monroe in October, 1786, that it would "be defended by the legislature with as much zeal as could be wished. Indeed, the only danger is that too much resentment may be indulged by many against the federal councils." His only apprehension was lest the Mississippi question should come up in the Assembly before the report from the Annapolis Convention should be disposed of, for if that were accepted the appointment of delegates to Philadelphia was assured. "I hope," he wrote to Washington in November, "the report will be called for before the business of the Mississippi begins to ferment." It happened as he wished. "The recommendation from Annapolis," he wrote again a week later, "in favor of a general revision of the federal system was unanimously agreed to" (the emphasis is his own). He afterward reported to Jefferson "that the project for bartering the Mississippi to Spain was brought before the Assembly after the preceding measure had been adopted." There was neither delay nor difficulty in securing the unanimous consent of the Assembly to resolutions instructing the members of Congress to oppose any concession to Spain. But Madison's anxiety was not in the least relieved by the speedy appointment of delegates to the Philadelphia Convention; for, he wrote presently to Washington, "I am entirely convinced, from what I observe here (at Richmond), that, unless the project of Congress can be reversed, the hopes of carrying this State into a proper federal system will be demolished." He had already said, in the same letter, that the resolutions on the Mississippi question had been "agreed to unanimously in the House of Delegates," and three days before the letter was written the delegates to Philadelphia had been appointed.

CHAPTER VII

Then it is also true that no man had worked harder, perhaps none had worked so hard, to bring the public mind to a serious consideration of affairs and a recognition of the necessity of reorganizing the government, if the States were to be held together. Never, it seemed, had men better reason to be satisfied with the result of their labors when, a few months later, the new Constitution was accepted by all the States. Yet the time was not far distant when even Madison would be in doubt as to the character of this new bond of union, and as to what sort of government had been secured by it. Nor till he had been dead near thirty years was it to be determined what union under the Constitution really meant; nor till three quarters of a century after the adoption of that instrument was the more perfect union formed, justice established, domestic tranquillity insured, the general welfare promoted, and the blessings of liberty secured to all the people, which by that great charter it was intended, in 1787, to ordain and establish. All the difficulties, which they who framed it escaped by their work, were as nothing to those which it entailed upon their descendants.

Two parties went into the convention. On one point, of course, they were agreed, else they would never have come together at all,—that a united government under the Articles of Confederation was a failure, and, unless some remedy should be speedily devised, States with common local interests would gravitate into separate and perhaps antagonistic nationalities. But the differences between these two parties were radical, and for a time seemed insurmountable. One proposed simply to repair the Articles of Confederation as they might overhaul a machine that was out of gear; the other proposed to form an altogether new Constitution. One wanted a merely federal government; not, however, meaning by that term what the other party—soon, nevertheless, to be known as Federalists—were striving for, but a confederation of States, each independent of all the rest and supreme in its own right, while consenting to unite with the rest in a limited government for the administration of certain common interests.[10]

This idea of the independence of the States was a survival of the old colonial system, when each colony under its distinct relation to the crown had attained a growth of its own with its separate interests. Each of these colonies had become a State. The Revolution had secured to each, it was maintained, a separate independence, achieved, it was true, by united efforts, but not therefore binding them together as a single nation. It was held as a legitimate result of that doctrine that each State, not the people of the State, whether many or few, should be represented by the same number of votes in a federal government as they were under the Articles of Confederation, because such a government was a union of States, not of a people.

All men, it was argued,—going back to a state of nature,—are equally free and independent; and when a government is formed every man has an equal share by natural right in its formation and in its subsequent conduct. While numbers are few, every member of the State exercises his individual right in person, and none can rightfully do more than this, however wise, or powerful, or rich he may be. But when government by the whole body of the people becomes cumbersome and inconvenient through increase of numbers, the individual citizen loses none of his rights by intrusting their exercise to representatives, in choosing and instructing whom all have an equal voice. So when States are united in a confederacy each State has the same relation to that government that individuals have to each other in a single State. They are free and equal, and none has a larger share of rights in the confederacy because its people are more numerous, or because it is richer or more powerful, than the rest. In such a confederacy it is not the individual citizen who is to be represented, but the individual State. In such a confederacy there would be the same representation for a State, say of ten thousand inhabitants, as for one of fifty thousand. This, it was maintained, preserved equality of suffrage in the equality of States; while the representation of the individual citizens of the States would be in reality inequality of suffrage, because the autonomy of the State would be lost sight of. If in such a case it were asked what had become of the rights which the majority of forty thousand had inherited from nature, the answer was that those rights were preserved and represented in the state government. The difficulty, nevertheless, remained: how to reconcile in practice this doctrine of the equal rights of States, where there might be a minority of persons, with the actual rights of the whole people where, according to the underlying democratic doctrine, the good of the whole must be decided by the larger number.

Those who proposed only to amend the old Articles of Confederation, and opposed a new Constitution, objected that a government formed under such a Constitution would be not a federal but a national government. Luther Martin said, when he returned to Maryland, that the delegates "appeared totally to have forgot the business for which we were sent.... We had not been sent to form a government over the inhabitants of America considered as individuals.... That the system of government we were intrusted to prepare was a government over these thirteen States, but that in our proceedings we adopted principles which would be right and proper only on the supposition that there were no state governments at all, but that all the inhabitants of this extensive continent were in their individual capacity, without government, and in a state of nature." He added that "in the whole system there was but one federal feature, the appointment of the senators by the States in their sovereign capacity, that is, by their legislatures, and the equality of suffrage in that branch; but it was said that this feature was only federal in appearance."

The Senate, the second house as it was called in the convention, was in part created, it is needless to say, to meet, or rather in obedience to, reasoning like this. There was almost nobody who would have been willing to abandon the state governments, as there was next to nobody who wanted a monarchy. "We were eternally troubled," Martin said, "with arguments and precedents from the British government." He could not get beyond the fixed notion that those whom he opposed were determined to establish "one general government over this extensive continent, of a monarchical nature." If he, and those who agreed with him, sincerely believed this to be true, it was natural enough that the frequent allusions to British precedents, as wise rules for American guidance in constructing a government, should be looked upon as an unmistakable hankering after lost flesh-pots. Should the state governments be swept away, it might be that, in time of danger from without or of peril from internal dissensions, the country, under "a government of a monarchical nature," might drift back to its old allegiance. If those who feared, or said they feared, this were not quite sincere, the temptation was almost irresistible to use such arguments to arouse popular prejudice against political opponents. It is curious that Madison seemed quite unconscious of how much the frequent allusions in his articles in "The Federalist" to the British Constitution might strengthen these accusations of the opposition; while he half believed that the same thing in others showed in them a leaning toward England, from which he knew that he himself was quite free.

The Luther Martin protestants were too radical to remain in the convention to the end, when they saw that such a confederacy as they wanted was impossible. But there were not many who went the length they did in believing that a strong central government was necessarily the destruction of the state governments. Still fewer were those who would have brought this about if they could. That the rights of the States must be preserved was the general opinion and determination, and it was not difficult to do this by limiting the powers of the higher government, or federal as it soon came to be called, and by the organization of the second house, the Senate, in which all the States had an equal representation. The smaller States were satisfied with this concession, and the larger were willing to make it, not only for the sake of the Union, but because of the just estimate in which they held the rights belonging to all the States alike. The real difficulty, as Madison said in the debate on that question, and as he repeated again and again after that question was settled, was not between the larger and smaller States, but between the North and the South; between those States that held slaves and those that had none.

Slavery in the Constitution, which has given so much trouble to the Abolitionists of this century, and indeed to everybody else, gave quite as much in the last century to those who put it there. Many of the wisest and best men of the time, Southerners as well as Northerners, and among them Madison, were opposed to slavery. They could see little good in it, hardly even any compensation for the existence of a system so full of evil. There was hardly a State in the Union at that time that had not its emancipation society; and there was hardly a man of any eminence in the country who was not an officer, or at least a member, of such a society. Everywhere north of South Carolina, slavery was looked upon as a misfortune which it was exceedingly desirable to be free from at the earliest possible moment; everywhere north of Mason and Dixon's line, measures had already been taken, or were certain soon to be taken, to put an end to it; and by the ordinance for the government of all the territory north of the Ohio River it was absolutely prohibited by Congress in the same year in which the Constitutional Congress met.

But it was, nevertheless, a thing to the continued existence of which the anti-slavery people of that time could consent without any violation of conscience. Bad as it was, unwise, wasteful, cruel, a mockery of every pretense of respect for the rights of man, they did not believe it to be absolutely wicked. If they had so believed, let us hope they would have washed their hands of it. As it was, it was only a question of expediency whether, for the sake of the Union, they should protect the system of slavery, and give to the slaveholders, as slaveholders, a certain degree of political power. To refuse to admit a slaveholding State into the Union did not occur, probably, to the most earnest opponent of the system; for that would have been simply to say that there should be no Union. That was what Madison meant in saying so repeatedly that the real difficulty in the way was, not the difference between the large and the small States, but the difference between the slaveholding and the non-slaveholding States. If there could be no conciliation on that point there could be no Union.

Some hoped, perhaps, rather than believed, that slavery was likely to disappear ere long at the South as it was disappearing at the North. It is an impeachment of their intelligence, however, to suppose that they relied much upon any such hope. The simple truth is that slavery was then, as it continued to be for three quarters of a century longer, the paramount interest of the South. To withstand or disregard it was not merely difficult, but was to brave immediate possible dangers and sufferings, which are never voluntarily encountered except in obedience to the highest sense of duty; or to meet a necessity, from which there was no manly way of escape. The sense of absolute duty was wanting; the necessity, it was hoped, might be avoided by concessions. It can only be said for those who made them that they did not see what fruitful seeds of future trouble they were sowing in the Constitution.