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CHAPTER X THE FIRST CONGRESS
The confederate Congress, at its final session in 1788, had fixed the time for the election of President and Vice-President under the Constitution, and the time and place for the meeting of the first Congress of the new government. The day appointed was the first Wednesday of the following March, and, as that date fell on the fourth of the month, a precedent was established which has ever since been observed in the installation of a new President. The place was not so easily determined. The choice lay between New York and Philadelphia, and the struggle was prolonged, not because the question of the temporary seat of government was of much moment, but because of the influence the decision might have upon the future settlement of the permanent place for the capital.

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,[123] 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.[124] 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:—

"My last inclosed copies of the President's inaugural speech, and the answer of the House of Representatives. I now add the answer of the Senate. It will not have escaped you that the former was addressed with a truly republican simplicity to George Washington, President of the United States. The latter follows the example, with the omission of the personal name, but without any other than the constitutional title. The proceeding on this point was, in the House of Representatives, spontaneous. The imitation by the Senate was extorted. The question became a serious one between the two houses. J. Adams espoused the cause of titles with great earnestness. His friend, R. H. Lee, although elected as a republican enemy to an aristocratic Constitution, was a most zealous second. The projected title was, His Highness the President of the United States and the Protector of their Liberties. Had the project succeeded, it would have subjected the President to a severe dilemma, and given a deep wound to our infant government."

Washington has sometimes been accused of wishing for the title of "His Highness," and of having[125] 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[126] 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[127] 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[128] 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[129] 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[130] 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, [131]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[132] 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[133] 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]

[134]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[135] 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[136] 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[137] 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[138] 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,—
"The souls of them fumed-forth, the hearts of them torn-out."

But Mr. Madison believed, at least, that he believed in them. There is in politics as in religion an accepted doctrine of justification by faith; and this, perhaps, sustained him when, twelve years later, as Jefferson's secretary of state, he learned from his chief that, as "Federalists seldom died and never resigned," party necessities must find a way of supplementing the law of nature. Jefferson was a little timid in applying the remedy, but Madison lived long enough to see Jackson boldly remove, in the course of his administration, about two thousand office-holders, whose places he wanted as rewards for his own political followers. From that time to this, there has not been a President who might not, if Madison's doctrine was sound, have been impeached for a "wanton" abuse of power.

[139]Though the Constitution had been adopted by the States, it was not without objections by some of them. To meet these objections Mr. Madison proposed twelve amendments declaratory of certain fundamental popular rights, which, it was thought by many persons, were not sufficiently guarded by the original articles. This, also, was left to him to do, no doubt because of his thorough knowledge of the Constitution and of the points wherein it was still imperfect, as well as those wherein it had better not be meddled with. The amendments, as finally agreed to after long debate, were essentially those which he proposed, and in due time ten of them were ratified by the States. The two that were not accepted referred only to the number of representatives in the House, and to the pay of members of Congress.

It was hoped that the selection of a place for the permanent seat of government would be made by this Congress. There was much talk of the centres of wealth, of territory, and of population then, and of where such centres might be in the future. But the question was really a sectional one. The Northern members were accused of having made a bargain out of doors with the members of the Middle States. The bargain, however, was only this: that, inasmuch as it was hopeless that the actual centre should be chosen as the site for a capital city, a place as near as possible to it should be insisted upon. The South, on the other hand, determined that the seat of government should[140] be within the boundaries of the Southern States. That was a foregone conclusion with them, that needed no bargain. The nearest navigable river to the centre of population was the Delaware; but the jealousy of New York stood in the way of any selection that favored Philadelphia. The Susquehanna was proposed. It empties into Chesapeake Bay. North of it was, as Mr. Sherman showed, a population of 1,400,000; and south of it, 1,200,000. The South wanted the capital on the Potomac, not because it was the centre of population then, but because it might be at some future time, from the growth of the West. On the other hand, it was insisted that the population south of the Potomac was then only 960,000, while north of it there were 1,680,000 people, and that it was no more accessible from the West than the Susquehanna was. To many members, moreover, this talk of the great future of the West seemed hardly worthy of consideration. It was "an unmeasurable wilderness," and "when it would be settled was past calculation," Fisher Ames said. "It was," he added, "perfectly romantic to make this decision depend upon that circumstance. Probably it will be near a century before these people will be considerable." He was nearer right when he said in the same speech "that trade and manufactures will accumulate people in the Eastern States in proportion of five to three, compared with the Southern. The disproportion will, doubtless, continue to be much greater than I have[141] calculated. It is actually greater at present, for the climate and negro slavery are acknowledged to be unfavorable to population, so that husbandry as well as commerce and manufactures will give more people in the Eastern than in the Southern States." It was, however, finally resolved by the House "that the permanent seat of the government of the United States ought to be at some convenient place on the banks of the river Susquehanna in the State of Pennsylvania;" and a bill accordingly was sent to the Senate.

Had the Senate agreed to this bill, there are some luminous pages of American history that would never have been written; for the progress of events would have taken quite another direction had the influences surrounding the national capital for the first half of this century been Northern instead of Southern. But the Senate did not agree. For "the convenient place on the banks of the Susquehanna" it substituted ten miles square on the river Delaware, beginning one mile from Philadelphia and including the village of Germantown. To this amendment the House agreed, and there, but for Madison, the matter would have ended. He had labored earnestly for the site on the Potomac; but failing in that, he hoped to postpone the question till the next session of Congress, when the representatives from North Carolina would be present. He moved a proviso that the laws of Pennsylvania should remain in force within the district ceded by the State till Congress should[142] otherwise provide by law. It seems to have been accepted without consideration, a single member only saying that he saw no necessity for it. At any rate, whether that was Mr. Madison's motive or not, time was gained, for it compelled the return of the bill to the Senate. This was on September 28, and the next day the session was closed by adjournment till the following January.

When in that next session the bill came back from the Senate to the House, a member from South Carolina said, in the course of debate, that "a Quaker State was a bad neighborhood for the South Carolinians." The Senate had also come to that conclusion, for the bill now proposed that the capital should be at Philadelphia for ten years only, and should then be removed to the banks of the Potomac. It was done, Madison wrote to Monroe, by a single vote, for two Southern senators voted against it. But the two senators from North Carolina were now present, and the majority of one was made sure of somehow.

So much was gained by gaining time, and Madison thought the passage of the bill through the House was possible, "but attended with great difficulties." Did he know how these difficulties were to be overcome? "If the Potomac succeeds," he adds, "it will have resulted from a fortuitous coincidence of circumstances which might never happen again." What the "fortuitous coincidence" was he does not explain; but the term was a felicitous euphuism to cover up what in the[143] blunter political language of our time is called "log-rolling."

The reader of this series of biographies is already familiar with Hamilton's skillful barter of votes for the Potomac site of the capital in exchange for votes in favor of his scheme for the assumption of the state debts. Madison seems not to have been ignorant of the progress of that bargain, with which Jefferson was afterward so anxious to prove that he had nothing to do. Madison earnestly opposed the assumption of the state debts from first to last; but, when he saw that the measure was sure to pass the House, he wrote to Monroe: "I cannot deny that the crisis demands a spirit of accommodation to a certain extent. If the measure should be adopted, I shall wish it to be considered as an unavoidable evil, and possibly not the worst side of the dilemma." In other words, he was willing to assent silently to what he believed to be a great injustice to several of the States, provided that the bargain should be a gain to his own State. If Hamilton and Jefferson were sinners in this business, Madison will hardly pass for a saint.


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