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CHAPTER III IN CONGRESS

Madison had grown steadily in the estimation of his colleagues, as is shown, especially in 1783, by the frequency of his appointment upon important committees. He was a member of that one to which was intrusted the question of national finances, and it is plain, even in his own modest report of the debates of that session, that he took an important part in the long discussions of the subject, and exercised a marked influence upon the result. The position of the government was one of extreme difficulty. To tide over an immediate necessity, a further loan had been asked of France in 1782, and bills were drawn against it without waiting for acceptance. It was not very likely, but it was not impossible, that the bills might go to protest; but even should they be honored, so irregular a proceeding was a humiliating acknowledgment of poverty and weakness, to which some of the delegates, Mr. Madison among them, were extremely sensitive.

The national debt altogether was not less than forty million dollars. To provide for the interest on this debt, and a fund for expenses, it was[29] necessary to raise about three million dollars annually. But the sum actually contributed for the support of the confederate government in 1782 was only half a million dollars. This was not from any absolute inability on the part of the people to pay more; for the taxes before the war were more than double that sum, and for the first three or four years of the war it was computed that, with the depreciation of paper money, the people submitted to an annual tax of about twenty million dollars. The real difficulty lay in the character of the Confederation. Congress might contrive but it could not command. The States might agree, or they might disagree, or any two or more of them might only agree to disagree; and they were more likely to do either of the last two than the first. There was no power of coercion anywhere. All that Congress could do was to try to frame laws that would reconcile differences, and bring thirteen supreme governments upon some common ground of agreement. To distract and perplex it still more, it stood face to face with a well-disciplined and veteran army which might at any moment, could it find a leader to its mind, march upon Philadelphia and deal with Congress as Cromwell dealt with the Long Parliament. There were some men, probably, in that body, who would not have been sorry to see that precedent followed. Washington might have done it if he would. Gates probably would have done it if he could.

To avert this threatened danger; to contrive[30] taxation that should so far please the taxed that they would refrain from using the power in their hands to escape altogether any taxation for general purposes,—was the knotty problem this Congress had to solve in order to save the Confederacy from dissolution. There was no want of plans and expedients; neither were there wanting men in that body who clearly understood the conditions of the problem, and how it might be solved, and whose aim was direct and unfaltering. Chief among them were Hamilton, Wilson, Ellsworth, and Madison. However wrong-headed, or weak, or intemperate others may have been, these men were usually found together on important questions; differing sometimes in details, but unmoved by passion or prejudice, and strong from reserved force, they overwhelmed their opponents at the right moment with irresistible argument and by weight of character.

In the discussion of the more important questions Mr. Madison is conspicuous—conspicuous without being obtrusive. A reader of the debates can hardly fail to be struck with his familiarity with English constitutional law, and its application to the necessities of this offshoot of the English people in setting up a government for themselves. The stores of knowledge he drew upon must needs have been laid up in the years of quiet study at home before he entered upon public life. For there was no congressional library then where a member could "cram" for debate; and—though[31] Philadelphia already had a fair public library—the member who was armed at all points must have equipped himself before entering Congress. In this respect Madison probably had no equal, except Hamilton, and possibly Ellsworth. To the need of such a library, however, he and others were not insensible. As chairman of a committee he reported a list of books "proper for the use of Congress," and advised their purchase. The report declared that certain authorities upon international law, treaties, negotiations, and other questions of legislation were absolutely indispensable, and that the want of them "was manifest in several Acts of Congress." But the Congress was not to be moved by a little thing of that sort.

The attitude of his own State sometimes embarrassed him in the satisfactory discharge of his duty as a legislator. The earliest distinction he won after entering Congress was as chairman of a committee to enforce upon Mr. Jay, then minister to Spain, the instructions to adhere tenaciously to the right of navigation on the Mississippi in his negotiations for an alliance with that power. Mr. Madison, in his dispatch, maintained the American side of the question with a force and clearness to which no subsequent discussion of the subject ever added anything. He left nothing unsaid that could be said to sustain the right either on the ground of expediency, of national comity, or of international law; and his arguments were not only in accordance with his own convictions, but[32] with the instructions of the Assembly of his own State. It was a question of deep interest to Virginia, whose western boundary at that time was the Mississippi. But Virginia soon afterward shifted her position. The course of the war in the Southern States in the winter of 1780-81 aroused in Georgia and the Carolinas renewed anxiety for an alliance with Spain. The fear of their people was that, in case of the necessity for a sudden peace while the British troops were in possession of those States or parts of them, they might be compelled to remain as British territory under the application of the rule of uti possidetis. It was urged, therefore, that the right to the Mississippi should be surrendered to Spain, if it were made the condition of an alliance. In deference to her neighbors, Virginia proposed that Mr. Jay should be reinstructed accordingly.

Mr. Madison was not in the least shaken in his conviction. With him, the question was one of right rather than of expediency. But not many at that time ventured to doubt that representatives must implicitly obey the instructions of their constituents. He yielded; but not till he had appealed to the Assembly to reconsider their decision. The scale was turned; in deference to the wishes of the Southern States new orders were sent to Mr. Jay. Mr. Madison, however, had not long to wait for his justification. When the immediate danger, which had so alarmed the South, had passed away, Virginia returned to her original[33] position. New instructions were again sent to her representatives, and Mr. Jay was once more advised by Congress that on the Mississippi question his government would yield nothing.

On another question, two years afterward, Mr. Madison refused to accept a position of inconsistency in obedience to instructions which his State attempted to force upon him. No one saw more clearly than he how absolutely necessary to the preservation of the Confederacy was the settlement of its financial affairs on some sound and just basis; and no one labored more earnestly and more intelligently than he to bring about such a settlement. Congress had proposed in 1781 a tax upon imports, each State to appoint its own collectors, but the revenue to be paid over to the federal government to meet the expenses of the war. Rhode Island alone, at first, refused her assent to this scheme. An impost law of five per cent. upon certain imports and a specific duty upon others for twenty-five years were an essential part of the plan of 1783 to provide a revenue to meet the interest on the public debt and for other general purposes. That Rhode Island would continue obstinate on this point was more than probable; and the only hope of moving her was that she should be shamed or persuaded into compliance by the combined influence of all the other States.

Mr. Madison was as bitter as he could ever be in his reflections upon that State, whose course,[34] he thought, showed a want of any sense of honor or of patriotism. Virginia, he argued, should rebuke her by making her own compliance with the law the more emphatic, as an example for all the rest. But Virginia did exactly the other thing. At the moment when debate upon the revenue law was the most earnest, and the prospect of carrying it the most hopeful; when a committee appointed by Congress had already started on their journey northward to expostulate with, and if possible conciliate, Rhode Island,—at that critical moment came news from Virginia that she had revoked her assent of a previous session to the impost law. This was equivalent to instructing her delegates in Congress to oppose any such measure. The situation was an awkward one for a representative who had put himself among the foremost of those who were pushing this policy, and who had been making invidious reflections upon a State which opposed it. The rule that the will of the constituents should govern the representative, he now declared, had its exceptions, and here was a case in point. He continued to enforce the necessity of a general law to provide a revenue, though his arguments were no longer pointed with the selfishness and want of patriotism shown by the people of Rhode Island. In the end his firmness was justified by Virginia, who again shifted her position when the new act was submitted to her.

The operation of the law was limited to five and twenty years. This Hamilton opposed and Madi[35]son supported; and in this difference some of the biographers of both see the foreshadowing of future parties. But it is more likely that neither of those statesmen thought of their difference of opinion as difference of principle. The question was, whether anything could be gained by a deference to that party which, both felt at that time, threatened to throw away, in adhering to the state-rights doctrine, all that was gained by the Revolution. They were agreed upon the necessity of a general law, supreme in all the States, to meet the obligation of a debt contracted for the general good. Unless—wrote Madison in February—"unless some amicable and adequate arrangements be speedily taken for adjusting all the subsisting accounts and discharging the public engagements, a dissolution of the union will be inevitable." He was willing, therefore, to temporize, that the necessary assent of the State to such a law might be gained. Nobody hoped that the public debt would be paid off in twenty-five years; but to assume to levy a federal tax in the States for a longer period, or till the debt should be discharged, might so arouse state jealousy that it would be impossible to get an assent to the law anywhere. If the law for twenty-five years should be accepted, the threatened destruction of the government would be escaped for the present, and it might, at the end of a quarter of a century, be easy to re?nact the law. At any rate, the evil day would be put off. This was Madison's reasoning.

[36]But Hamilton did not believe in putting off a crisis. He had no faith in the permanency of the government as then organized. If he were right, what was the use or the wisdom of postponing a catastrophe till to-morrow? A possible escape from it might be even more difficult to-morrow than to-day. The essential difference between the two men was, that Madison only feared what Hamilton positively knew, or thought he knew. It was a difference of faith. Madison hoped something would turn up in the course of twenty-five years. Hamilton did not believe that anything good could turn up under the feeble rule of the Confederation. He would have presented to the States, then and there, the question, Would they surrender to the confederate government the right of taxation so long as that government thought it necessary? If not, then the Confederation was a rope of sand, and the States had resolved themselves into thirteen separate and independent governments. Therefore he opposed the condition of twenty-five years, and voted against the bill.

Nevertheless, when it became the law he gave it his heartiest support, and was appointed one of a committee of three to prepare an address, which Madison wrote, to commend it to the acceptance of the States. Indeed, the last serious effort made on behalf of the measure was made by Hamilton, who used all his eloquence and influence to induce the legislature of his own State to ratify it. It was the law against his better judgment; but[37] being the law, he did his best to secure its recognition. But it failed of hearty support in most of the States, while in New York and Pennsylvania compliance with it was absolutely refused. Nothing, therefore, would have been lost had Hamilton's firmness prevailed in Congress; and nothing was gained by Madison's deference to the doctrine of state rights, unless it was that the question of a "more perfect union" was put off to a more propitious time, when a reconstruction of the government under a new federal Constitution was possible. Meanwhile Congress borrowed the money to pay the interest on money already borrowed; the confederate government floundered deeper and deeper into inextricable difficulties; the thirteen ships of state drifted farther and farther apart, with a fair promise of a general wreck.

But the bill contained another compromise which was not temporary, and once made could not be easily unmade. Agreed to now, it became a condition of the adoption of the federal Constitution four years later; and there, as nobody now is so blind as not to see, it was the source of infinite mischief for nearly a century, till a third reconstruction of the union was brought about by the war of 1861-65. The Articles of Confederation required that "all charges of war and all other expenses that shall be incurred for the common defense or general welfare" should be borne by the States in proportion to the value of their lands. It was proposed to amend this provision[38] of the Constitution, and for lands substitute population, exclusive of Indians not taxed, as the basis for taxation. But here arose at once a new and perplexing question. There were, chiefly in one portion of the country, about 750,000 "persons held to service or labor,"—the euphuism for negro slaves which, evolved from some tender and sentimental conscience, came into use at this period. Should these, recognized only as property by state law, be counted as 750,000 persons by the laws of the United States?[5] Or should they, in the enumeration of population, be reckoned, in accordance with the civil law, as pro nullis, pro mortuis, pro quadrupedibus, and therefore not to be counted at all? Or should they, as those who owned them insisted, be counted, if included in the basis of taxation, as fractions of persons only?

The South contended that black slaves were not equal to white men as producers of wealth, and that, by counting them as such, taxation would be unequal and unjust. But whether counted as units or as fractions of units, the slaveholders insisted that representation should be according to that enumeration. The Northern reply was that, if representation was to be according to population, the slaves being included, then the slave States would have a representation of property, for which there would be no equivalent in States where there were no slaves; but if slaves were enumerated as [39]a basis of representation, then that enumeration should also be taken to fix the rate of taxation.

Here, at any rate, was a basis for an interesting deadlock. One simple way out of it would have been to insist upon the doctrine of the civil law; to count the slaves only as pro quadrupedibus, to be left out of the enumeration of population as being no part of the State, as horses and cattle were left out. But the bonds of union hung loosely upon the sisters a hundred years ago; there was not one of them who did not think she was able to set up for herself and take her place among the nations as an independent sovereign; and it is more than likely that half of them would have refused to wear those bonds any longer on such a condition. There was no apprehension then that slavery was to become a power for evil in the State; but there was intense anxiety lest the States should fly asunder, form partial and local unions among neighbors, or become entangled in alliances with foreign nations, at the sacrifice of all, or much, that was gained by the Revolution. To make any concession, therefore, to slavery for the sake of the union was hardly held to be a concession.

The curious student of history, however, who loves to study those problems of what might have happened if events that did not happen had come to pass, will find ample room for speculation in the possibilities of this one. Had there been no compromise, it is as easy to see now, as it was easy[40] to foresee then, how quickly the feeble bond of union would have snapped asunder. But nevertheless, if the North had insisted that the slaves should neither be counted nor represented at all, or else should be reckoned in full and taxes levied accordingly, the consequent dissolution of the Confederacy might have had consequences which then nobody dreamed of. For it is not impossible, it is not even improbable, that, in that event, the year 1800 would have seen slavery in the process of rapid extinction everywhere except in South Carolina and Georgia. Had the event been postponed in those States to a later period, it would only have been because they had already found in the cultivation of indigo and rice a profitable use for slave-labor, which did not exist in the other slave States, where the supply of slaves was rapidly exceeding the demand. There can hardly be a doubt that, in case of the dissolution of the Confederacy, the Northern free-labor States would soon have consolidated into a strong union of their own. There was every reason for hastening it, and none so strong for hindering it as those which were overborne in the union which was actually formed soon afterward between the free-labor and slave-labor States. To such a Northern union the border States, as they sloughed off the old system, would have been naturally attracted; nor can there be a doubt that a federal union so formed would ultimately have proved quite as strong, quite as prosperous, quite as happy, and quite as[41] respectable among the nations, as one purchased by compromises with slavery, followed, as those compromises were, by three quarters of a century of bitter political strife ending in a civil war.

But the Northern members were no less ready to make compromises than Southern members were to insist upon them, these no more understanding what they conceded than those understood what they gained; for the future was equally concealed from both. A committee reported that two blacks should be rated as one free man. This was unsatisfactory. To some it seemed too large, to others too small. Other ratios, therefore, were proposed,—three to one, three to two, four to one, and four to three. Mr. Madison at last, "in order," as he said, "to give a proof of the sincerity of his professions of liberality,"—and doubtless he meant to be liberal,—proposed "that slaves should be rated as five to three." His motion was adopted, but afterward reconsidered. Four days later—April 1st—Mr. Hamilton renewed the proposition, and it was carried, Madison says, "without opposition."[6] The law on this point was the precedent for the mischievous three fifths rule of the Constitution adopted four years later.

[42]Youth finally overtook the young man during the last winter of his term in Congress, for he fell in love. But it was an unfortunate experience, and the outcome of it doubtless gave a more sombre hue than ever to his life. His choice was not a wise one. Probably Mr. Madison seemed a much older man than he really was at that period of his life, and to a young girl may have appeared really advanced in years. At any rate, it was his unhappy fate to be attached to a young lady of more than usual beauty and of irrepressible vivacity,—Miss Catherine Floyd, a daughter of General William Floyd of Long Island, N. Y., who was one of the signers of the Declaration of Independence, and who was a delegate to Congress from 1774 to 1783. Miss Catherine's sixteenth birthday was in April of the latter year; Madison was double her age, as his thirty-second birthday was a month earlier. His suit, however, was accepted, and they became engaged. But it was the father rather than the daughter who admired the suitor; for the older statesman better understood the character, and better appreciated the abilities, of his young colleague, and predicted a brilliant career for him. The girl's wisdom was of another kind. The future career which she foresaw and wanted to share belonged to a young clergyman, who—according to the reminiscences of an aged relative of hers—"hung round her at the harpsichord," and made love in quite another fashion than that of the[43] solemn statesman whom the old general so approved of. It is altogether a pretty love story, and one's sympathy goes out to the lively young beauty, who was thinking of love and not of ambition, as she turned from the old young gentleman, discussing, with her wise father, the public debt and the necessity of an impost, to that really young young gentleman who knew how to hang over the harpsichord, and talked more to the purpose with his eyes than ever the other could with his lips. There is a tradition that she was encouraged to be thus on with the new love before she was off with the old, by a friend somewhat older than herself; and possibly this maturer lady may have thought that Madison would be better mated with one nearer his own age. At any rate, the engagement was broken off before long by the dismissal of the older lover, much to the father's disappointment, and in due time the young lady married the other suitor. There is no reason that I know of for supposing that she ever regretted that her more humble home was in a rectory, when it might have been, in due time, had she chosen differently, in the White House at Washington, and that afterward she might have lived, the remaining sixteen years of her life, the honored wife of a revered ex-President. Perhaps, however, she smiled in those later years at the recollection of having laughed in her gay and thoughtless youth at her solemn lover, and that, when at last she dismissed him, she sealed her[44] letter—conveying to him alone, it may be, some merry but mischievous meaning—with a bit of rye-dough.[7]

Mr. Rives gives a letter from Jefferson to Madison at this time, which shows that he stood in need of consolation from his friends. "I sincerely lament," Mr. Jefferson wrote in his philosophical way, "the misadventure which has happened, from whatever cause it may have happened. Should it be final, however, the world presents the same and many other resources of happiness, and you possess many within yourself. Firmness of mind and unintermitting occupation will not long leave you in pain. No event has been more contrary to my expectations, and these were founded on what I thought a good knowledge of the ground. But of all machines ours is the most complicated and inexplicable." It was Solomon who said, "there be three things which are too wonderful for me, yea, four which I know not." This fourth was, "the way of a man with a maid." He might have added a fifth,—the way of a maid with a man, which, evidently, is what Jefferson meant.


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