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

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 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 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 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 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, 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 Madison 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 reenact the law. At any rate,

the evil day would be put off. This was Madison's reasoning.

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 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 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 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 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 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.

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 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 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.

FOOTNOTES:

[Footnote 5: In some of the States slaves were reckoned as "chattels

personal;" in others as "real estate."]

[Footnote 6: J. C. Hamilton says, in his _History of the Republic_, that

"the motion prevailed by a vote of all the States excepting

Massachusetts and Rhode Island." But his understanding of the question

is in other respects incorrect,--misunderstood, one may hope, rather

than misstated lest he should give credit, for what he considered a

meritorious action, to Madison.]

[Footnote 7: For the details, so far as they can now be recalled, of

this single romantic incident in Mr. Madison's life, I am indebted to

Nicoll Floyd, Esq., of Moriches, Long Island, a great-grandson of

General William Floyd.]

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