CHAPTER IV

IN THE STATE ASSEMBLY

As the election of the same delegate to Congress for consecutive

sessions was then forbidden by the law of Virginia, Mr. Madison was not

returned to that body in 1784. For a brief interval of three months he

made good use of his time, we are told, by continuing his law studies,

till in the spring of that year he was chosen to represent his county in

the Virginia Assembly. It may be that "the sentiments and manners of the

parent nation," which he lamented seven years before, had passed away,

and nobody now insisted upon the privilege of getting drunk at the

candidate's expense before voting for him. But it is more likely that

the electors had not changed. The difference was in the candidate; they

did not need to be allured to give their votes to a man whom they were

proud to call upon to represent the county. Mr. Madison's reputation was

already made by his three years in Congress, and he now easily took a

place among the political leaders of his own State.

The position was hardly less conspicuous or less influential than that

which he had held in the national Congress. What each State might do

was of quite as much importance as anything the federal government might

or could do. Congress could neither open nor close a single port in

Virginia to commerce, whether domestic or foreign, without the consent

of the State; it could not levy a tax of a penny on anything, whether

goods coming in or products going out, if the State objected. As a

member of Congress, Mr. Madison might propose or oppose any of these

things; as a member of the Virginia House of Delegates, he might, if his

influence was strong enough, carry or forbid any or all of them,

whatever might be the wishes of Congress. It was in the power of

Virginia to influence largely the welfare of her neighbors, so far as it

depended upon commerce, and indirectly that of every State in the Union.

In the Assembly, as in Congress, Mr. Madison's aim was to increase the

powers of the federal government, for want of which it was rapidly

sinking into imbecility and contempt. "I acceded," he says, "to the

desire of my fellow-citizens of the county that I should be one of its

representatives in the legislature," to bring about "a rescue of the

Union and the blessings of liberty staked on it from an impending

catastrophe." Early in the session the Assembly assented to the

amendment to the Articles of Confederation proposed at the late session

of Congress, which substituted population for a land valuation as the

basis of representation and of taxation. The Assembly also asserted that

all requisitions upon the States for the support of the general

government and to provide for the public debt should be complied with,

and payment of balances on old accounts should be enforced; and it

assented to the recommendation of Congress that that body should have

power for a limited period to control the trade with foreign nations

having no treaty with the United States, in order that it might

retaliate upon Great Britain for excluding American ships from her West

India colonies. All these measures were designed for "the rescue of the

Union," and they had, of course, Madison's hearty support. For it was

absolutely essential, as he believed, that something should be done if

the Union was to be saved, or to be made worth saving. But there were

obstacles on all sides. The commercial States were reluctant to

surrender the control over trade to Congress; in the planting States

there was hardly any trade that could be surrendered. In Virginia the

tobacco planter still clung to the old ways. He liked to have the

English ship take his tobacco from the river bank of his own plantation,

and to receive from the same vessel such coarse goods as were needed to

clothe his slaves, with the more expensive luxuries for his own

family,--dry goods for his wife and daughter; the pipe of madeira, the

coats and breeches, the hats, boots, and saddles for himself and his

sons. He knew that this year's crop went to pay--if it did pay--for last

year's goods, and that he was always in debt. But the debt was on

running account, and did not matter. The London factor was skillful in

charges for interest and commissions, and the account for this year was

always a lien on next year's crop. He knew, and the planter knew, that

the tobacco could be sold at a higher price in New York or Philadelphia

than the factor got, or seemed to get, for it in London; that the goods

sent out in exchange were charged at a higher price than they could be

bought for in the Northern towns. Nevertheless, the planter liked to see

his own hogsheads rolled on board ship by his own negroes at his own

wharf, and receive in return his own boxes and bales shipped direct from

London at his own order, let it cost what it might. It was a shiftless

and ruinous system; but the average Virginia planter was not over-quick

at figures, nor even at reading and writing. He was proud of being lord

of a thousand or two acres, and one or two hundred negroes, and fancied

that this was to rule over, as Mr. Rives called it, "a mimic

commonwealth, with its foreign and domestic relations, and its regular

administrative hierarchy." He did not comprehend that the isolated life

of a slave plantation was ordinarily only a kind of perpetual barbecue,

with its rough sports and vacuous leisure, where the roasted ox was

largely wasted and not always pleasant to look at. There was a rude

hospitality, where food, provided by unpaid labor, was cheap and

abundant, and where the host was always glad to welcome any guest who

would relieve him of his own tediousness; but there was little luxury

and no refinement where there was almost no culture. Of course there

were a few homes and families of another order, where the women were

refined and the men educated; but these were the exceptions. Society

generally, with its bluff, loud, self-confident but ignorant planters,

its numerous poor whites destitute of lands and of slaves, and its mass

of slaves whose aim in life was to avoid work and escape the whip, was

necessarily only one remove from semi-civilization.

It was not easy to indoctrinate such a people, more arrogant than

intelligent, with new ideas. By the same token it might be possible to

lead them into new ways before they would find out whither they were

going. Mr. Madison hoped to change the wretched system of plantation

commerce by a port bill, which he brought into the Assembly. Imposts

require custom-houses, and obviously there could not be custom-houses

nor even custom-officers on every plantation in the State. The bill

proposed to leave open two ports of entry for all foreign ships. It

would greatly simplify matters if all the foreign trade of the State

could be limited to these two ports only. It would then be easy enough

to enforce imposts, and the State would have something to surrender to

the federal government to help it to a revenue, if, happily, the time

should ever come when all the States should assent to that measure of

salvation for the Union. Not that this was the primary object of those

who favored this port law; but the question of commerce was the

question on which everything hinged, and its regulation in each State

must needs have an influence, one way or the other, upon the possibility

of strengthening, even of preserving, the Union. Everything depended

upon reconciling these state interests by mutual concessions. The South

was jealous of the North, because trade flourished at the North and did

not flourish at the South. It seemed as if this was at the expense of

the South, and so, in a certain sense, it was. The problem was to find

where the difficulty lay, and to apply the remedy.

If commerce flourished at the North, where each of the States had one or

two ports of entry only, why should it not flourish in Virginia if

regulated in the same way? If those centres of trade bred a race of

merchants, who built their own ships, bought and sold, did their own

carrying, competed with and stimulated each other, and encroached upon

the trade of the South, why should not similar results follow in

Virginia if she should confine her trade to two or three ports? If the

buyer and the seller, the importer and the consumer, went to a common

place of exchange in Philadelphia, New York, and Boston, and prosperity

followed as a consequence, why should they not do the same thing at

Norfolk? This was what Madison aimed to bring about by the port bill.

But it was impossible to get it through the legislature till three more

ports were added to the two which the bill at first proposed. When the

planters came to understand that such a law would take away their

cherished privilege of trade along the banks of the rivers, wherever

anybody chose to run out a little jetty, the opposition was persistent.

At every succeeding session, till the new federal Constitution was

adopted, an attempt was made to repeal the act; and though that was not

successful, each year new ports of entry were added. It did not, indeed,

matter much whether the open ports of Virginia were two or whether they

were twenty. There was a factor in the problem which neither Mr. Madison

nor anybody else would take into the account. It was possible, of

course, if force enough were used, to break up the traffic with English

ships on the banks of the rivers; but when that was done, commerce would

follow its own laws, in spite of the acts of the legislature, and flow

into channels of its own choosing. It was not possible to transmute a

planting State, where labor was enslaved, into a commercial State, where

labor must be free.

However desirous Mr. Madison might be to transfer the power over

commerce to the federal government, he was compelled, as a member of the

Virginia legislature, to care first for the trade of his own State. No

State could afford to neglect its own commercial interests so long as

the thirteen States remained thirteen commercial rivals. It was becoming

plainer and plainer every day that, while that relation continued, the

less chance there was that thirteen petty, independent States could

unite into one great nation. No foreign power would make a treaty with a

government which could not enforce that treaty among its own people.

Neither could any separate portion of that people make a treaty, as any

other portion, the other side of an imaginary line, need not hold it in

respect. What good was there in revenue laws, or, indeed, in any other

laws in Massachusetts which Connecticut and Rhode Island disregarded? or

in New York, if New Jersey and Pennsylvania laughed at them? or in

Virginia, if Maryland held them in contempt?

But Mr. Madison felt that, if he could bring about a healthful state of

things in the trade of his own State, there was at least so much done

towards bringing about a healthful state of things in the commerce of

the whole country. There came up a practical, local question which, when

the time came, he was quick to see had a logical bearing upon the

general question. The Potomac was the boundary line between Virginia and

Maryland; but Lord Baltimore's charter gave to Maryland jurisdiction

over the river to the Virginia bank; and this right Virginia had

recognized, claiming only for herself the free navigation of the Potomac

and the Pocomoke. Of course the laws of neither State were regarded when

it was worth while to evade them; and nothing was easier than to evade

them, since to the average human mind there is no privilege so precious

as a facility for smuggling. Nobody, at any rate, seems to have thought

anything about the matter till it came under Madison's observation after

his return home from Congress. To him it meant something more than mere

evasion of state laws and frauds on the state revenue. The subject fell

into line with his reflections upon the looseness of the bonds that held

the States together, and how unlikely it was that they would ever grow

into a respectable or prosperous nation while their present relations

continued. Virtually there was no maritime law on the Potomac, and

hardly even the pretense of any. What could be more absurd than to

provide ports of entry on one bank of a river, while on the other bank,

from the source to the sea, the whole country was free to all comers? If

the laws of either State were to be regarded on the opposite bank, a

treaty was as necessary between them as between any two contiguous

states in Europe.

Madison wrote to Jefferson, who was now a delegate in Congress, pointing

out this anomalous condition of things on the Potomac, and suggesting

that he should confer with the Maryland delegates upon the subject. The

proposal met with Jefferson's approbation; he sought an interview with

Mr. Stone, a delegate from Maryland, and, as he wrote to Madison,

"finding him of the same opinion, [I] have told him I would, by letters,

bring the subject forward on our part. They will consider it, therefore,

as originated by this conversation." Why "they" should not have been

permitted to "consider it as originated" from Madison's suggestion that

Jefferson should have such a conversation is not quite plain; for it was

Madison, not Jefferson, who had discovered that here was a wrong that

ought to be righted, and who had proposed that each State should appoint

commissioners to look into the matter and apply a remedy. So, also, so

far as subsequent negotiation on this subject had any influence in

bringing about the Constitutional Convention of 1787, it was only

because Mr. Madison, having suggested the first practical step in the

one case, seized an opportune moment in that negotiation to suggest a

similar practical step in the other case. As it is so often said that

the Annapolis Convention of 1786 was the direct result of the discussion

of the Potomac question, it is worth while to explain what they really

had to do with each other.

The Virginia commissioners were appointed early in the session on Mr.

Madison's motion. Maryland moved more slowly, and it was not till the

spring of 1785 that the commissioners met. They soon found that any

efficient jurisdiction over the Potomac involved more interests than

they, or those who appointed them, had considered. Existing difficulties

might be disposed of by agreeing upon uniform duties in the two States,

and this the commissioners recommended. But when the subject came before

the Maryland legislature it took a wider range.

The Potomac Company, of which Washington was president, had been

chartered only a few months before. The work it proposed to do was to

make the upper Potomac navigable, and to connect it by a good road with

the Ohio River. This was to encourage the settlement of Western lands.

Another company was chartered about the same time to connect the Potomac

and Delaware by a canal, where interstate traffic would be more

immediate. Pennsylvania and Delaware must necessarily have a deep

interest in both these projects, and the Maryland legislature proposed

that those States be invited to appoint commissioners to act with those

whom Maryland and Virginia had already appointed to settle the conflict

between them upon the question of jurisdiction on the Potomac. Then it

occurred to somebody: if four States can confer, why should not

thirteen? The Maryland legislature thereupon suggested that all the

States be invited to send delegates to a convention to take up the whole

question of American commerce.

While this was going on in Maryland, the Virginia legislature was

considering petitions from the principal ports of the State praying that

some remedy might be devised for the commercial evils from which they

were all suffering. The port bill had manifestly proved a failure. It

was only a few weeks before that Madison had complained, in a letter to

a friend, that "the trade of the country is in a most deplorable

condition;" that the most "shameful frauds" were committed by the

English merchants upon those in Virginia, as well as upon the planters

who shipped their own tobacco; that the difference in the price of

tobacco at Philadelphia and in Virginia was from eleven shillings to

fourteen shillings in favor of the Northern ports; and that "the price

of merchandise here is, at least, as much above, as that of tobacco is

below, the Northern standard." He was only the more confirmed in his

opinion that there was no cure for these radical evils except to

surrender to the confederate government complete control over commerce.

The debate upon these petitions was hot and long. It brought out the

strongest men on both sides, Madison leading those who wished to give to

Congress the power to regulate trade with foreign countries when no

treaty existed; to make uniform commercial laws for all the States; and

to levy an impost of five per cent. on imported merchandise, as a

provision for the public debt and for the support of the federal

government generally. A committee, of which he was a member, at length

reported instructions to the delegates of the State in Congress to labor

for the consent of all the States to these propositions. But in

Committee of the Whole the resolutions were so changed and

qualified--especially in limiting to thirteen years the period for which

Congress was to be intrusted with a power so essential to the existence

of the government--that the measure was given up by its friends as

hopeless.

But before the report was disposed of Mr. Madison prepared a

resolution, to be offered as a substitute, with the hope of reaching the

same end in another way. This resolution provided for the appointment of

five commissioners,--Madison to be one of them,--"who, or any three of

whom, shall meet such commissioners as may be appointed in the other

States of the Union, at a time and place to be agreed on, to take into

consideration the trade of the United States; to examine the relative

situations and trade of said States; to consider how far a uniform

system in their commercial regulations may be necessary to their common

interest and their permanent harmony; and to report to the several

States such an act, relative to this great object, as, when unanimously

ratified by them, will enable the United States, in Congress,

effectually to provide for the same." This he was careful not to offer

himself, but, as he says, it was "introduced by Mr. Tyler, an

influential member, who, having never served in Congress, had more the

ear of the House than those whose services there exposed them to an

imputable bias." He adds that "it was so little acceptable that it was

not then persisted in."

About the same time the action of the Maryland legislature on the

Potomac question, and the report of the Potomac commissioners, came up

for consideration. Mr. Madison said afterward that, as Maryland thought

the concurrence of Pennsylvania and Delaware were necessary to the

regulation of trade on that river, so those States would, probably,

wish to ask for the concurrence of their neighbors in any proposed

arrangement. "So apt and forcible an illustration," he adds, "of the

necessity of an uniformity throughout all the States could not but favor

the passage of a resolution which proposed a convention having that for

its object."

As one of the Potomac commissioners, he knew, of course, what was coming

from Maryland, and "how apt and forcible an illustration" it would seem,

when it did come, of that resolution which he had written and had

induced Mr. Tyler to offer. It did not matter that the resolution had

been at the moment "so little acceptable," and therefore "not then

persisted in." It was where it was sure, in the political slang of our

day, to do the most good. And so it came about. All that Maryland had

proposed, growing out of the consideration of the Potomac question, the

Virginia legislature acceded to. Then, on the last day of the session,

the Madison-Tyler resolution was taken from the table, where it had lain

quietly for nearly two months, and passed. If some, who had been

contending all winter against any action which should lead to a

possibility of strengthening the federal government, failed to see how

important a step they had taken to that very end; if any, who were

fearful of federal usurpation and tenacious of state rights, were blind

to the fact that the resolution had pushed aside the Potomac question

and put the Union question in its place, Mr. Madison, we may be sure,

was not one of that number. He had gained that for which he had been

striving for years.

The commissioners appointed by the resolution soon came together. They

appointed Annapolis as the place, and the second Monday of the following

September (1786) as the time, of the proposed national convention; and

they sent to all the other States an invitation to send delegates to

that convention.

On September 11 commissioners from Virginia, Delaware, Pennsylvania, New

Jersey, and New York assembled at Annapolis. Others had been appointed

by North Carolina, Rhode Island, Massachusetts, and New Hampshire, but

they were not present. Georgia, South Carolina, Maryland, and

Connecticut had taken no action upon the subject. As five States only

were represented, the commissioners "did not conceive it advisable to

proceed on the business of their mission," but they adopted an address,

written by Alexander Hamilton, to be sent to all the States.

All the represented States, the address said, had authorized their

commissioners "to take into consideration the trade and commerce of the

United States; to consider how far an uniform system in their commercial

intercourse and regulations might be necessary to their common interest

and permanent harmony." But New Jersey had gone farther than this; her

delegates were instructed "to consider how far an uniform system in

their commercial regulations _and other important matters_ might be

necessary to the common interest and permanent harmony of the several

States." This, the commissioners present thought, "was an improvement on

the original plan, and will deserve to be incorporated into that of a

future convention." They gave their reasons at length for this opinion,

and, in conclusion, urged that commissioners from all the States be

appointed to meet in convention at Philadelphia on the second Monday of

the following May (1787), "to devise such further provisions as shall

appear to them necessary to render the Constitution of the federal

government adequate to the exigencies of the Union."

In the course of the winter delegates to this convention were chosen by

the several States. Virginia was the first to choose her delegates;

Madison was among them, and at their head was George Washington.

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