James Madison

CHAPTER VIII

But why should slaves be represented at all? "They are not free agents," said Patterson, a delegate to the convention from New Jersey; they "have no personal liberty, no faculty of acquiring property, but, on the contrary, are themselves property, and, like other property, entirely at the will of the master. Has a man in Virginia a number of votes in proportion to the number of his slaves? And if negroes are not represented in the States to which they belong, why should they be represented in the general government?... If a meeting of the people was actually to take place in a slave State, would the slaves vote? They would not. Why, then, should they be represented in a federal government?" There could be but one reply, but that was one which it would not have been wise to make. It was slave property that was to be represented, and this would not be submitted to among slaveholders as against each other, while yet they were a unit in insisting upon it in a union with those who were not slaveholders. Among themselves slavery needed no protection; their safety was in equality. But to their great interest every non-slaveholder was, in the nature of things, an enemy; and prudence required that the power either to vote him down or to buy him up should never be wanting. It was as much a matter of instinct as of deliberation, for love of life is the first law. The truth was covered up in Madison's specious assertion that "every peculiar interest, whether in any class of citizens or any description of States, ought to be secured as far as possible." The only "peculiar" interest, however, belonging either to citizens or States, that was imbedded in the Constitution, was slavery.

So Wilson of Pennsylvania asked: "Are they [the slaves] admitted as citizens—then why are they not admitted on an equality with white citizens? Are they admitted as property—then why is not other property admitted into the computation?" He was willing, however, to concede that it was a difficulty to be "overcome by the necessity of compromise."

Never, probably, in the history of legislation, was there a more serious question debated. Compromise is ordinarily understood to mean an adjustment by mutual concessions, where there are rights on both sides. Here it meant whether the side which had no shadow of right whatever to that which it demanded would consent to take a little less than the whole. It was the kind of compromise made between the bandit and his victim when the former decides that he will not put himself to the trouble of shooting the other, and will even leave him his shirt. It was not difficult to understand that horses and cattle could be justly counted only where property was to be the basis of representation. Yet the slaves, who were counted, were, in the eye of the law, either personal property or real estate, and were no more represented as citizens than if they also had gone upon all fours. Their enumeration, nevertheless, was carried, and it so increased the representative power of their masters that inequality of citizenship became the fundamental principle of the government. This, of course, was to form an oligarchy, not a democracy. Practically the government was put in the hands of a class, and there it remained from the moment of the adoption of the Constitution to the rebellion of 1860; while that class, including those of so little consequence as to own only a slave or two, in its best estate, probably never exceeded ten per centum of the whole people.

There was, if one may venture to say so, a singular confusion in the minds of the venerable fathers of the republic on this subject. They could not quite get rid of the notion that the slaves, being human, ought to be included in the enumeration of population, notwithstanding that their enumeration as citizens must necessarily disappear in their representation as chattels. Slaves, as slaves, were the wealth of the South, as ships, for example, were the wealth of the North; but, being human, the mind was not shocked at having the slaves reckoned as population in fixing the basis of representation, though in reality they only represented the masters' ownership. But nobody would have been at a loss to see the absurdity of counting three fifths of the Northern ships as population. Even a Webster Whig of sixty-five years later could, perhaps, have understood that that was something more than an "unimportant anomaly." There was no clearer-headed man in the convention than Gouverneur Morris; yet he said that he was "compelled to declare himself reduced to the dilemma of doing injustice to the Southern States or to human nature, and he must do it to the former." C. C. Pinckney of South Carolina declared that he was "alarmed" at such an avowal as that. Yet had the question been one of counting three fifths of the Northern ships in the enumeration of population, Morris would have discovered no "dilemma," and Pinckney nothing to be "alarmed" at. So palpable an outrage on common sense would have been merely laughed at by both.

In reply to Pinckney, however, Morris grew bolder. "It was high time," he said, "to speak out." He came there "to form a compact for the good of America. He hoped and believed that all would enter into such compact. If they would not, he was ready to join with any States that would. But as the compact was to be voluntary, it is in vain for the Eastern States to insist on what the Southern States will never agree to. It is equally vain for the latter to require what the other States can never admit, and he verily believed the people of Pennsylvania will never agree to a representation of negroes;" of negroes, he meant, counted as human beings, not for their own representation, but, as ships might be counted, for the increased representation of those who held them as property. The next day he "spoke out" still more plainly. "If negroes," he said, "were to be viewed as inhabitants, ... they ought to be added in their entire number, and not in the proportion of three fifths. If as property, the word 'wealth' was right,"—as the basis, that is, of representation. The distinction that had been set up by Madison and others between the Northern and Southern States he considered as heretical and groundless. But it was persisted in, and "he saw that the Southern gentlemen will not be satisfied unless they see the way open to their gaining a majority in the public councils.... Either this distinction [between the North and the South] is fictitious or real; if fictitious, let it be dismissed, and let us proceed with due confidence. If it be real, instead of attempting to blend incompatible things, let us at once take a friendly leave of each other."

But could they take "a friendly leave of each other"? Should a union be secured on the terms the South offered? or should it be declined, as Morris proposed, if it could not be a union of equality? The next day Madison again set forth the real issue, quietly but unmistakably. "It seemed now," he said, "to be pretty well understood that the real difference of interests lay, not between the large and small, but between the Northern and Southern States. The institution of slavery and its consequences formed the line of discrimination." There is sometimes great power, as he well knew, in firm reiteration. So long as slavery lasted, the lesson he then inculcated was never forgotten. Thenceforward, as then, "the line of discrimination," in Southern politics, lay with "slavery and its consequences." One side would abate nothing of its demands; there could be no "friendly leave" unless the determination, on the other side, to overcome the desire for union and take the consequences was equally firm.

When the question again came up, however, Morris had not lost heart. His talk was the talk of a modern abolitionist:—

So much of this as was not already fact was prophecy. Yet not many weeks later this impassioned orator put his name to the Constitution, though it had grown meanwhile into larger pro-slavery proportions. There was undoubtedly some sympathy with him among a few of the members; but the general feeling was more truly expressed a few days later by Rutledge of South Carolina, in the debate on the continuance of the African slave trade. "Religion and humanity," he said, "had nothing to do with this question. Interest alone is the governing principle with nations. The true question at present is, whether the Southern States shall or shall not be parties to the Union. If the Northern States consult their interest, they will not oppose the increase of slaves, which will increase the commodities of which they will become the carriers." The response came from Connecticut, Oliver Ellsworth saying: "Let every State import what it pleases. The morality or wisdom of slavery are considerations belonging to the States themselves. What enriches a part enriches the whole,"—especially Newport and its adjacent coasts, he might have added, with its trade to the African coast.

But a Virginian, George Mason, had another tone. He called the traffic "infernal." "Slavery," he went on, "discourages arts and manufactures. The poor despise labor when performed by slaves. They prevent the emigration of whites, who really enrich and strengthen a country. They produce the most pernicious effect on manners. Every master of slaves is born a petty tyrant. They bring the judgment of Heaven on a country. As nations cannot be rewarded or punished in the next world, they must be in this. By an inevitable chain of causes and effects, Providence punishes national sins by national calamities."

These were warnings worth heeding. But Ellsworth retorted with a sneer: "As he had never owned a slave, he could not judge of the effect of slavery on character." He said, however, that, "if it was to be considered in a moral light, we ought to go farther, and free those already in the country." But, so far from that, he thought it would be "unjust toward South Carolina and Georgia," in whose "sickly rice swamps" negroes died so fast, should there be any intermeddling to prevent the importation of fresh Africans to labor, and, of course, to perish there. Perhaps it was this shrewd argument of the Connecticut delegate that suggested, half a century afterward, to a Mississippi agricultural society, the economical calculation that it was cheaper to use up a gang of negroes every few years, and supply its place by a fresh gang from Virginia, than rely upon the natural increase that would follow their humane treatment as men and women. His colleague, Roger Sherman, came to Ellsworth's aid. It would be, he thought, the duty of the general government to prohibit the foreign trade in slaves, and, should this be left in its power, it would probably be done. But he would not, if the Southern States made it the condition of consenting to the Constitution that the trade should be protected, leave it in the power of the general government to do that which he acknowledged that it should and probably would do.

Delegates from Georgia and the Carolinas declared that to be the condition,—among them C. C. Pinckney of South Carolina. "He should consider," he said, "a rejection of the clause as an exclusion of South Carolina from the Union." Nevertheless he said to the people at home, when they came together to consider the Constitution: "We are so weak that by ourselves we could not form a union strong enough for the purpose of effectually protecting each other. Without union with the other States, South Carolina must soon fall." On the part of that State it had been a game of brag all along. The first lesson in the South Carolinian policy was given in the Constitutional Convention. Of the result, this was Pinckney's summing up to his constituents:—

A more moderate and a more significant statement could hardly have been made.

On the foreign slave trade Madison had little to say, but, like most of the Southern delegates north of the Carolinas, he was opposed to it. "Twenty years," he said, "will produce all the mischief that can be apprehended from the liberty to import slaves. So long a term will be more dishonorable to the American character than to say nothing about it in the Constitution." The words are a little ambiguous, though he is his own reporter. But what he meant evidently was, that any protection of the trade would dishonor the nation; for at another point of the debate, on the same day, he said that "he thought it wrong to admit in the Constitution the idea that there could be property in men." Such property he was anxious to protect as the great Southern interest, so long as it lasted; but he was not willing to strengthen it by permitting the continuance of the African slave trade for twenty years longer under the sanction of the Constitution. But he held it to be, as he wrote in "The Federalist," "a great point gained in favor of humanity that a period of twenty years may terminate forever within these States a traffic which has so long and so loudly upbraided the barbarism of modern policy." He added, "The attempt that had been made to pervert this clause into an objection against the Constitution, by representing it as a criminal toleration of an illicit practice," was a misconstruction which he did not think deserving of an answer.

It was, in fact, a bargain which he had not approved of, and did not now probably care to talk about. It was made at the suggestion of Gouverneur Morris, who moved that the foreign slave trade, a navigation act, and a duty on exports be referred for consideration to a committee. "These things," he said, "may form a bargain among the Northern and Southern States." When the committee reported in favor of the slave trade, C. C. Pinckney proposed that its limitation should be extended from 1800 to 1808. Gorham of Massachusetts seconded the motion, and it was carried by the addition of the votes of New Hampshire, Massachusetts, and Connecticut to those of Maryland, North Carolina, South Carolina, and Georgia.

The committee also reported the substitution of a majority vote for that of two thirds in legislation relating to commerce. The concession was made without much difficulty, a Georgia delegate and three of the four South Carolina delegates favoring it, two of the latter frankly saying they did so to gratify New England. It was, C. C. Pinckney said, "the true interest of the Southern States to have no regulation of commerce;" but he assented to this proposition, and his constituents "would be reconciled to this liberality," because, among other considerations, of "the liberal conduct [of the New England States] towards the views of South Carolina." There was no question of the meaning of this sudden avowal of friendly feeling. Jefferson relates in his "Ana," on the authority of George Mason, a member of the convention, that Georgia and South Carolina had "struck up a bargain with the three New England States, that if they would admit slaves for twenty years, the two southernmost States would join in changing the clause which required two thirds of the legislature in any vote."

The settlement of these questions was an opportune moment for the introduction of that relating to fugitive slaves. Butler of South Carolina immediately proposed a section which should secure their return to their masters, and it was passed without a word. As Pinckney said in the passage already quoted, when he went back to report to his constituents, "it is a right to recover our slaves, in whatever part of America they may take refuge, which is a right we had not before."

It is notable how complete and final a settlement of the slavery question "these compromises," as they were called, seemed to be to those who made them. They were meant to be, as Mr. Madison called them, "adjustments of the different interests of different parts of the country," and being once agreed upon they were considered as having the binding force and stability of a contract. The evils of slavery were set forth as an element in the negotiation, but no question of essential morality was raised that brought the system within the category of forbidden wrong. Whatever results might follow would be limited, it was thought, by the terms of the contract; whereas, in fact, the actual results were not foreseen, and could not be guarded against, except by the refusal to enter into any contract whatever.

On all other questions involving political principles,—the just relations of the federal government and the governments of the States; the relations between the larger and the smaller States; the regulation of the functions of the executive, the legislative, and the judicial departments of government,—on all these the framers of the Constitution brought to bear the profoundest wisdom. When one reflects upon the magnitude and character of the work, Madison's conclusion seems hardly extravagant, that "adding to these considerations the natural diversity of human opinions on all new and complicated subjects, it is impossible to consider the degree of concord which ultimately prevailed as less than a miracle." There were, nevertheless, the gravest and most anxious doubts how far the Constitution would stand the test of time; yet as a system of government for a nation of freemen it remains to this day practically unchanged. But where its architects thought themselves wisest they were weakest. That which they thought they had settled forever was the one thing which they did not settle. Of all the "adjustments" of the Constitution, slavery was precisely that one which was not adjusted.

Madison's responsibility for this result was that of every other delegate,—no more and no less. Neither he nor they, whether more or less opposed to slavery, saw in it a system so subversive of the rights of man that no just government should tolerate it. That was reserved for a later generation, and even that was slow to learn. To the fathers it was, at worst, only an unfortunate and unhappy social condition, which it would be well to be rid of if this could be done without too much sacrifice; but otherwise, to be submitted to, like any other misfortune.

While it did exist, however, Madison believed it should be protected, though not encouraged, as a Southern interest. The question resolved itself into one of expediency,—of union or disunion. What disunion would be, he knew, or thought he knew. Perhaps he was mistaken. Disunion, had it come then, might have been the way to a true union. "We are so weak," said C. C. Pinckney, "that by ourselves we could not form a union strong enough for the purpose of effectually protecting each other. Without union with the other States, South Carolina must soon fall." But he was careful to say this at home, not in Philadelphia. In the convention, Madison wrote a month after it adjourned, "South Carolina and Georgia were inflexible on the point of the slaves." What was to be the union which that inflexibility carried was not foreseen. It was the children's teeth that were to be set on edge.

CHAPTER IX

But this feeling seems to have soon passed away. Perhaps, when he devoted himself to a careful study of what had been done, he saw, in looking at it as a whole, how just and true it was in its fair proportions. He now diligently sought to prove how certainly the Constitution would answer its purpose; how wisely all its parts were adjusted; how successfully the obstacles to a perfect union of the States had been, as he thought, overcome; how carefully the rights of the separate States had been guarded, while the needed general government would be secured. Whether there should be an American nation or not depended, as he had believed for years, upon whether a national Constitution could be agreed upon. Now that it was framed he believed that upon its adoption depended whether there should be, or should not be, a nation. In September, as he wrote to Jefferson, he was in doubt; in February he wrote to Pendleton: "I have for some time been persuaded that the question on which the proposed Constitution must turn is the simple one, whether the Union shall or shall not be continued. There is, in my opinion, no middle ground to be taken."

Those who would have called a second convention to revise the labors of the first had no sympathy from him. He not only doubted if the work could be done so well again; he doubted if it could be done at all. With him, it was this Constitution or none. "Every man," he said in "The Federalist," referring to a picture he had just drawn of the perils of disunion,—"every man who loves peace, every man who loves his country, every man who loves liberty, ought to have it ever before his eyes, that he may cherish in his heart a due attachment to the Union of America, and be able to set a due value on the means of preserving it." This "means" was the Constitution.

Of the eighty papers of "The Federalist" he wrote twenty-nine; Hamilton writing forty-six, and Jay only five. These famous essays, of wider repute than any other American book, are yet more generally accepted upon faith than upon knowledge. But at that time, when the new Constitution was in the mind and on the tongue of every thoughtful man, they were eagerly read as they followed each other rapidly in the columns of a New York newspaper. They were an armory, wherein all who entered into the controversy could find such weapons as they could best handle. What governments had been, what governments ought to be, and what the political union of these American States would be under their new Constitution, were questions on which the writers of these papers undertook to answer all reasonable inquiries, and to silence all cavils. Madison would undoubtedly have written more than his two fifths of them, had he not been called upon early in March to return to Virginia; for the work was of the deepest interest to him, and the popularity of the papers would have stimulated to exertion one as indolent as he was industrious.

But the canvass for the election of delegates to the Constitutional Convention of Virginia called him home. He had been nominated as the representative of his county, and his friends had urged him to return before the election, for there was reason to fear that the majority was on the wrong side. Henry, Mason, Randolph, Lee, and others among the most influential men of Virginia, were opposed to the Constitution. There must be somebody in the convention to meet strong men like these, and Madison was urged to take the stump and canvass for his own election. Even this he was willing to do at this crisis, if need be, though he said it would be at the sacrifice of every private inclination, and of the rule which hitherto from the beginning of his public career he had strictly adhered to,—never to ask, directly or indirectly, for votes for himself.

It is quite possible, even quite probable, that Mr. Madison had little of that gift which has always passed for eloquence, and is, indeed, eloquence of a certain kind. If we may trust the reports of his contemporaries, though he wanted some of the graces of oratory, he was not wanting in the power of winning and convincing. His arguments were often, if not always, prepared with care. If there was no play of fancy, there was no forgetfulness of facts. If there was lack of imagination, there was none of historical illustration, when the subject admitted it. If manner was forgotten, method was not. His aim was to prove and to hold fast; to make the wrong clear, and to put the right in its place; to appeal to reason, not to passion, nor to prejudice; to try his cause by the light of clear logic, hard facts, and sound learning; to convince his hearers of the truth, as he believed in it, not to take their judgment captive by surprise with harmonious modulation and grace of movement. Not his neighbors only, but the most zealous of the Federalists of the State, sent him to the convention. It was there that such eloquence as he possessed was peculiarly needed. The ground was to be fought over inch by inch, and with antagonists whom it would be difficult, if not impossible, to beat. There was to be contest over every word of the Constitution from its first to its last. "Give me leave," cried Patrick Henry in his opening speech, "to demand what right had they to say 'We the people' instead of 'We the States'?" He began at the beginning. It was the gage of the coming battle; the defenders were challenged to show that any better union than that already in existence was needed, and that in this new Constitution a better union was furnished.

As month after month passed away while the Constitution was before the people for adoption, the anxiety of the Federalists grew, lest the requisite nine States should not give their assent. But when eight were secured there was room to hope even for unanimity, if Virginia should come in as the ninth. Should she say Yes, the Union might be perfect; for the remaining States would be almost sure to follow her lead. But should she say No, the final result would be doubtful, even if the requisite nine should be secured by the acquiescence of one of the smaller States. This answer could not, of course, depend altogether upon one man, but it did depend more upon Madison than upon anybody else.

The convention was in session nearly a month. At the end of a fortnight he was not hopeful. "The business," he wrote to Washington, "is in the most ticklish state that can be imagined. The majority will certainly be very small, on whatever side it may finally lie; and I dare not encourage much expectation that it will be on the favorable side." But his fears stimulated rather than discouraged him. He was always on his feet; always ready to meet argument with argument; always prompt to appeal from passion to reason; quick to brush aside mere declamation, and to bring the minds of his hearers back to a calm consideration of how much was at stake, and of the weight of the responsibility resting on that convention. Others were no less earnest and diligent than he; but he was easily chief, and the burden and heat of the day fell mainly upon him. Probably when the convention assembled the majority were opposed to the Constitution; but its adoption was carried at last by a vote of eighty-nine to seventy-nine. Thenceforth opposition in the remaining States was hopeless.

New Hampshire—though the fact was not known in Virginia—preceded that State by a few days in accepting the Constitution, so that the requisite nine were secured before the convention at Richmond came to a decision. But it was her decision, nevertheless, that really settled, so far as can be seen now, the question of a permanent Union. Had the vote of Virginia been the other way it is not likely that Hamilton would have carried New York, or that North Carolina and Rhode Island would have finally decided not to be left in solitude outside. What the history of the nine united States only, with four disunited States among them, might have been, it is impossible to know, and quite useless to conjecture. The conditions which some of the States attached to the act of adoption, the addition of a Bill of Rights, proposed amendments to the Constitution, and the suggestion of submitting it to a second convention, were matters of comparatively little moment, when the majority of ten delegates was secured at Richmond. These were questions that could be postponed. "The delay of a few years," Madison wrote to Jefferson, "will assuage the jealousies which have been artificially created by designing men, and will at the same time point out the faults which call for amendment."

Immediately after the adjournment of the Richmond Convention he returned to New York, where the confederate Congress was still in session. That body had little to do now but decide upon the time and place of the inauguration of the new government. Madison had entered upon his thirty-eighth year, and we get an interesting glimpse of him as he appeared at this time of his life to an intelligent foreigner. "Mr. Warville Brissot has just arrived here," he wrote to Jefferson in August, 1788. This was Brissot de Warville, a Frenchman of the new philosophy,—whose head, nevertheless, his compatriots cut off a few years later,—then traveling in America to observe the condition and progress of the new republic. His tour extended to nearly all the States; he met with most of the distinguished men of the country; and he made a careful and intelligent use of his many opportunities for observation. On his return to France he wrote an entertaining volume,—"New Travels in the United States of America,"—still to be found in some old libraries. What he says of Madison is worth repeating, not only for the impression he made upon an observant stranger, but as the evidence of the contemporary estimate of his character and reputation, which De Warville must have gathered from others.

In October the Virginia Assembly met. Two thirds of its members were opposed to the new Constitution, and at their head was Patrick Henry, his zeal against it not in the least abated because he had been defeated in the late convention. The acceptance of the Constitution by that representative body could not be recalled. But the Assembly could, at least, protest against it, and was led by Henry to call upon Congress to convene a second national convention to do over again the work of the first. The legislature was to elect senators for the first Senate under the new government; and it was also to divide the State into districts for its representation in the lower house of Congress. In ordinary fairness, as the State had, in a popular convention, so recently accepted the Constitution, the party then in the majority was entitled to at least one of the representatives in the Senate. But Henry nominated both, and could command votes enough to elect them. In modern party usage this would seem quite unobjectionable; indeed, a modern politician who should not use such an advantage for his party would be considered as unfit for practical politics. But a hundred years ago it was thought sharp practice, and a fair proportion of Henry's partisans refused to be bound by it. One of Henry's nominees was elected by a majority of twenty over Madison; but in the case of the other that majority was reduced more than half, and a change of five more votes would have elected Madison.

He had, however, neither expected nor wished to be sent to the Senate, while he did hope to be elected to the House of Representatives. The Senate was intended to be the more dignified body, requiring in its members a certain style of living for which wealth was indispensable. Madison had not the means to give that kind of social support to official position; but he could afford to belong to that body where a member was not the less respectable because his whole domestic establishment might be a bachelor's room in a boarding-house.

Virginia was, as he wrote to Washington, "the only instance among the ratifying States in which the politics of the legislature are at variance with the sense of the people, expressed by their representatives in convention." This had enabled Henry and a majority of his friends to elect senators who, representing "the politics of the legislature," did not represent "the sense of the people" in regard to the national Constitution. But in the election of members of the House of Representatives, the sense of the people was to be again appealed to, and a new way must be devised for asserting the supremacy of legislative power. The cleverness of Elbridge Gerry of Massachusetts, many years later, under similar circumstances, introduced a new word into the language of the country, and, it was supposed at the time, a new device in American politics. But what has since been known as "Gerrymandering" was really the invention of Patrick Henry. This method of arranging counties into congressional districts in accordance with their political affinities, without regard to their geographical lines, Henry attempted to do with Mr. Madison's own county. By joining it to distant counties it was expected that an anti-Federal majority would be secured large enough to insure his defeat. The attempt to elect him to the Senate was, Madison wrote to Jefferson, "defeated by Mr. Henry, who is omnipotent in the present legislature." He adds that Henry "has taken equal pains, in forming the counties into districts for the election of representatives, to associate with Orange such as are most devoted to his politics, and most likely to be swayed by the prejudices excited against me." The scheme, however, was unsuccessful, perhaps partly because of the indignation which so dishonorable a measure to defeat a political opponent excited throughout the State. Madison entered upon an active canvass of his district against James Monroe, who had been nominated as a moderate anti-Federalist, and defeated him. It was winter time, and in the exposure of some of his long rides his ears were frozen. In later life he sometimes laughingly pointed to the scars of these wounds received, he said, in the service of his country.

Thus Henry's "Gerrymander," like many another useful and curious device, brought neither profit nor credit to the original inventor. Had Henry acted in the broader spirit of the modern politician, who sees that he serves himself best who serves his party best, he would have disposed of every Federal county in the State as he disposed of Orange. As it was, he only aroused a good deal of indignation and defeated himself by openly aiming to gratify his personal resentments. Had he scattered his shot for the general good of the party, he would, perhaps, have brought down his particular bird.

CHAPTER X

No quorum of the new Congress was present at New York on March 4, 1789, and neither house was organized until early in April. On the 23rd Washington arrived; and on the 30th he took the oath of office as first President of the United States, standing on the balcony of Federal Hall, at the corner of Wall and Broad streets, a site now occupied by another building used as the subtreasury. A week before, when the ceremonies proper for such an occasion were a subject of discussion in Congress, the question of fitting titles for the President and Vice-President came up for consideration. It was decided that when the President arrived the Vice-President should meet him at the door of the senate chamber, lead him to the chair, and then, in a formal address, inform him that the two houses were ready to witness the administration of the oath of office. "Upon this," says John Adams in a letter written three years afterward, "I arose in my place and asked the advice of the Senate, in what form I should address him, whether I should say 'Mr. Washington,' 'Mr. President,' 'Sir,' 'May it please your Excellency,' or what else? I observed that it had been common while he commanded the army to call him 'His Excellency,' but I was free to own it would appear to me better to give him no title but 'Sir,' or 'Mr. President,' than to put him on a level with a governor of Bermuda, or one of his own ambassadors, or a governor of any one of our States."

Thereupon the question went to a conference committee of both houses, who reported that no other title would be proper for either President or Vice-President, at any time, than those which were given by the Constitution. To this report the Senate disagreed and appointed a new committee. This proposed that the President should be called "His Highness the President of the United States and Protector of their Liberties." When wise men are absurd they presume on their prerogative. The Senate accepted the report, but the House had the good sense to reject it, consenting, however, to leave the question in abeyance. On these proceedings Mr. Madison thus commented in a letter to Jefferson:—

Washington has sometimes been accused of wishing for the title of "His Highness," and of having suggested it. Had this been true, Madison would have been certain to know it, and he was quite incapable of asserting in that case that such a title would have been to the President "a severe dilemma." About Mr. Adams he was perhaps mistaken, as he might easily have been, since he was not a member of the Senate, and probably heard only a confused report of how the question was brought before that body. As Mr. Adams's letter, quoted just now, shows, he regarded the charge as a calumny and resented it. He gave them, according to his own statement, no other opinion than that he preferred "Sir," or "Mr. President," as a more proper address than "Excellency," a title then, as now, pertaining to governors of States. He probably took no further part in the debate, but it is not impossible that he may in private have avowed a preference for some other and higher title than either "Mr. President" or "Your Excellency." "For," he said in the explanatory letter to his friend, "I freely own that I think decent and moderate titles, as distinctions of offices, are not only harmless, but useful in society; and that in this country, where I know them to be prized by the people as well as their magistrates as highly as by any people or any magistrates in the world, I should think some distinction between the magistrates of the national government and those of the state governments proper." A distinction might be proper enough if there were to be any titles whatever; but certainly they were the wiser who preferred good homespun to threadbare old clothes. Had rags of that sort been made a legal uniform, it is almost appalling to reflect upon the absurdities to which the national fondness for titles would have carried us.

From March 4 to April 1, though the House of Representatives met daily, there were not members enough present to make a quorum. The first real business brought before the House, except that relating to its organization, was introduced by Madison, two days after the inauguration. It was a proposition to raise a revenue by duties on imports, and by a tonnage duty on all vessels, American and foreign, bringing goods, wares, or merchandise into the United States. The essential weakness of the late Confederacy was, first of all, to be remedied by uniform rules for the regulation of trade. Revenue must be provided for the support of government, and that in a way which should not be oppressive to the people. Commerce, Mr. Madison said, "ought to be as free as the policy of nations will admit," but government must be supported, and taxes the least burdensome and most easily collected are those derived from duties on imports. He agreed, however, as he said on the second day of the debate, with those who would so adjust the duties on foreign goods as to protect the "infant manufactories" of the country. With little interruption this subject was debated for the first six weeks of the opening session of the First Congress. No other could have been hit upon to test so thoroughly the strength of the new bond of union. It was to brush aside all those trade regulations in the several States which each had hitherto thought essential to its prosperity. Every interest in the country was to be considered, and their different, sometimes opposing, claims to be reconciled.

New England was sure that, should the tax on molasses be too high, the distilleries would be shut up, and a great New England industry destroyed. Nor would the injury stop there. The fisheries, as well as the distilleries, would be ruined. For three fifths of the fish put up for the West Indies could find no market anywhere else; and a market existed there only because molasses was taken in exchange. A prohibitory duty on that article, or a duty that should seriously interfere with its importation, would wellnigh destroy the fisheries. What then would become of the nursery of American seamen? With no seamen there would be no shipbuilding. What sadder picture than this of a New England without rum, without codfish, without seamen, and without ships! One can easily conceive that even in that restrained and dignified First Congress there was no want of serious and alarmed expostulation, and even some threatening talk from such men as the tranquil Goodhue, the thoughtful and scholarly Ames, and the impulsive Gerry.

Then the South, for her part, was alarmed lest, among other things, too high a tonnage duty should leave her tobacco, her rice and indigo, rotting in the fields and warehouses for want of ships to take them to market. She had no ships of her own and could have none, and she invited the ships of the rest of the world to come for her products and bring in return all she needed for her own consumption. The picture of the possible ruin of New England was as nothing to that of the Southern planter scanning the horizon with weary eyes in vain for the sight of a sail, while behind him was a dangerous crowd of hungry blacks with nothing to do. That desolation seemed complete to the southernmost States when it was also proposed to levy a tax of ten dollars upon every slave imported. In short, the whole subject bristled with difficulties. The problem was nothing more nor less than how to tax everything, and at the same time convince everybody that the scheme was for the general good, while nobody's special interests were sacrificed. The "infant industries," to which Mr. Madison alluded, really received no special consideration in the final adjustment, and they were too feeble then even to cry for nursing. They have grown stronger since, though they are "infants" still; and they should never cease to be grateful to him who, however unwittingly, gave them a name to live by for a hundred years.

But the most remarkable part of the debate was that upon the proposition of Mr. Parker of Virginia to impose a duty upon the importation of slaves. Could the progress of events have been foreseen, that proposal might have been regarded as meant to protect an "infant industry" of the northernmost slave States. But the wildest imagination then could not conceive of the domestic slave trade of a few years later, when a chief source of the prosperity of Virginia would be her perennial crop of young men and women to be shipped for New Orleans and a market. But Mr. Parker had no ulterior motive when he avowed his regret that the Constitution had failed to prohibit the importation of slaves from Africa, and hoped that the duty he proposed would prevent, in some degree, a traffic which he pronounced "irrational and inhuman." It would have been difficult to have found a Virginian of that day who would not have taken down his shotgun on hearing that there were miscreants prowling about his kitchen doors in the hope of buying up the strongest young people of his household for export to the Southwest.

Judging from the imperfect report of the debate upon the subject, it would seem that the bargain relative to the slave trade, made in the Constitutional Convention of two years before between New England and the two southernmost States, might still hold good. Or there may have been a new bargain; or, perhaps, both sides trusted to a tacit recognition of the eternal fitness of things, and made common cause where legislation threatened at the same time the distillery and the slave-ship.[11] At any rate, the extreme Southerners expressed surprise at the audacity which would disturb a compromise of the Constitution; the extreme Northerners deprecated it as quite uncalled for in any consideration of the subject of revenue. The principle of Mr. Parker's motion, Mr. Sherman of Connecticut thought, was to correct a moral evil; the principle of the bill before the House was to raise a revenue. At some other time he would be willing to consider the question of taxing the importation of negroes on the ground of humanity and policy; but it was a sufficient reason with him for not admitting it as an object of revenue that the burden would fall upon two States only. Fisher Ames of Massachusetts could only take counsel of his conscience. From his soul, he said, he detested slavery; and—forgetting, apparently, that this tax was provided for by the Constitution—he doubted whether imposing it "would not have the appearance of authorizing the practice" of trading in slaves. This was his reason for wishing to postpone the subject. But Mr. Livermore of New Hampshire was more ingenious still. If the imported negroes were goods, wares, or merchandise, they would come within the title of the bill, and be taxed under the general rule of five per centum, which would be about the same rate as ten dollars a head; but if they were not goods, wares, or merchandise, then such importation could not properly be included in the consideration of the question of a revenue from duties on such articles of trade.

Mr. Madison came to the help of his colleague, and brushed aside the sophistries of the New England allies of the slave traders. If there were anything wanting in the title of the bill to cover this particular duty, it was easy to add it. If the question was not one of taxation because it was one of humanity, it would be quite as difficult to deal with it under any other bill for levying a duty as under this. If the tax seemed unjust because it bore heavily upon a single class, that would be a good reason for remitting many taxes which there was no hesitation in imposing. If ten dollars seemed a heavy duty, a little calculation would show that it was only about the proposed ad valorem duty of five per centum on most other importations. "It is to be hoped," he added, "that by expressing a national disapprobation of this trade we may destroy it, and save ourselves from reproaches, and our posterity the imbecility ever attendant on a country filled with slaves." "If there is any one point," he continued, "in which it is clearly the policy of this nation, so far as we constitutionally can, to vary the practice obtaining under some of the state governments, it is this.... It is as much the interest of Georgia and South Carolina as of any in the Union. Every addition they receive to their number of slaves tends to weaken and render them less capable of self-defense.... It is a necessary duty of the general government to protect every part of the empire against danger, as well internal as external. Everything, therefore, which tends to increase this danger, though it may be a local affair, yet, if it involves national expense or safety, becomes of concern to every part of the Union, and is a proper subject for the consideration of those charged with the general administration of the government." No Northern man, except Elbridge Gerry of Massachusetts, supported this measure; and none from the Southern States, except three of the Virginia members, with Madison leading. As the foreign slave trade was protected in the Constitution for twenty years by a bargain between the two southernmost States and New England, so now the same influence staved off the imposition of the tax which was a part of the consideration to be given for that constitutional protection of the trade. It is not a creditable fact; but it is, nevertheless, a fact and a representative one in the history of the United States. And it is to Madison's great honor that he had neither part nor lot in it.

After six weeks of earnest debate, an amicable and satisfactory agreement was made to impose a moderate duty upon pretty much everything imported, except slaves from Africa. It was literally a tariff for revenue; but it was a settlement that settled nothing definitely, except that the provision of the Constitution for a tax of ten dollars on imported slaves should be a dead letter. Thenceforth the policy of free trade was established, so far as African slaves were concerned, till the traffic was supposed to cease by constitutional limitation and Act of Congress in 1808.[12]

The determination to protect the commercial interests of the country, beyond the point of mere revenue, was more manifest in fixing the rate of duty upon tonnage than in duties upon importations. It was generally agreed, after much debate, that American commerce had better be in American hands, and a difference of twenty cents a ton was made between the tax upon domestic and that upon foreign ships, as a measure of protection to American shipping. Mr. Madison proposed to make it still larger, but the House would only agree to increase it to forty cents on ships belonging to powers with which the United States had no treaties. The Senate, however, refused to admit this distinction, and insisted that all foreign ships should be subject to the same tonnage duty without regard to existing treaties. The House assented, lest the bill should be lost altogether. This proposed differential duty on foreign vessels was as clearly aimed at Great Britain as if that power had been named in the bill. Nor, indeed, was there any attempt at concealment; for it was openly avowed that America had no formidable rival except the English, who already largely controlled the commerce of the United States. In the debates and in the final decision of the question is shown clearly enough the difference of opinion and of feeling, which soon made the dividing line between the two great parties of the first quarter of a century under the Constitution. Nobody then foresaw how bitter that difference of party was to be, nor what disastrous consequences would follow it.

Mr. Madison was among the most zealous of those who insisted upon a discrimination against Great Britain. He thought it should be made for the dignity no less than for the interest of the United States. He had no fear, he said, "of entering into a commercial warfare with that nation." England, he believed, could do this country no harm by any peaceful reprisals she could devise. She supplied the United States with no article either of necessity or of luxury that the people of the United States could not manufacture for themselves. He called those "Anglicists" who did not agree with him, and who believed that it was in the power of Great Britain to hinder or to help immensely the prosperity of the United States. It was not of so much moment what America bought of England as it was that England should consent to free trade with her colonies; and on every account it was wiser to conciliate than to defy Great Britain; wiser to induce her to enter into a friendly commercial alliance than to provoke her to retaliate upon the feeble commerce of this country, upon which she had so strong a grip. Madison had shown himself, before this time, half credulous of the charges of a leaning toward England, and toward monarchy, made by those who wanted a congress of petty states against those who wanted a strong national government. If, however, there were Anglicism on one side, so there was quite as much Gallicism, if not a good deal more, on the other. In writing to Jefferson of the probability that the Senate would make no discrimination in the tonnage duties, he said that in that case "Great Britain will be quieted in the enjoyment of our trade as she may please to regulate it, and France discouraged from her efforts at a competition which it is not less our interest than hers to promote." Whatever may be thought of this first concession of the new government to England, it is quite as much the coming party leader as the statesman who speaks here. It may not be doubted that he sincerely thought it to be, as he said, "impolitic, in every view that can be taken of the subject, to put Great Britain at once on the footing of the most favored nation." But the relation of American interests to English interests was evidently already associated in his mind with the relations of France and England, so soon to be the absorbing question in American politics.

The impost act was followed by others hardly less important in putting the new Constitution into operation under its first Congress. The direction of business seems, by common consent, to have been intrusted to Mr. Madison among the many able men of that body; doubtless because of his thorough familiarity with the Constitution, and of his methodical ways. He was sure to bring things forward in their due order, to provide judiciously for the more immediate needs. The impost bill secured the means to work with; the next necessity was to organize the machinery to do the work. Resolutions to create the executive departments of Foreign Affairs, of the Treasury, and of War were offered by Mr. Madison. These were required in general terms by the Constitution, with a single officer at the head of each, to be appointed by the President "by and with the advice and consent of the Senate." The manner of the appointment of subordinate officers was provided for by the Constitution, but the manner of their removal from office was not. Was the tenure of office to be good behavior? Were the incumbents removable, with or without cause? If the power of removal existed, did it vest in the power that appointed, that is, in the President and Senate conjointly, or in the President alone?

As the Constitution was silent, the question had to be settled on its own merits. With all the arguments that could be urged, either on one side or the other, we are familiar enough in our time, coming up as the question so often does in changes in state constitutions and municipal charters, and in the discussion of the necessity for civil service reform. There is this essential difference, however, between now and then: we know the mischiefs that come from the power of official removal, which were then only dimly apprehended. The power of removal from office belonged, Mr. Madison believed, rightfully to the chief magistrate, and, if by some unhappy chance the wrong man should find his way to that position and abuse the power intrusted to him, "the wanton removal of meritorious officers would," he said, "subject the President to impeachment and removal from his own high trust."

Lofty political principles like these may still be found in the platforms of modern political parties,—