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, at the corner of Wall and Broad streets, a site now occupied by

another building used as the subtreasury. A week before, when the

ceremonies proper for such an occasion were a subject of discussion in

Congress, the question of fitting titles for the President and

Vice-President came up for consideration. It was decided that when the

President arrived the Vice-President should meet him at the door of the

senate chamber, lead him to the chair, and then, in a formal address,

inform him that the two houses were ready to witness the administration

of the oath of office. "Upon this," says John Adams in a letter written

three years afterward, "I arose in my place and asked the advice of the

Senate, in what form I should address him, whether I should say 'Mr.

Washington,' 'Mr. President,' 'Sir,' 'May it please your Excellency,' or

what else? I observed that it had been common while he commanded the

army to call him 'His Excellency,' but I was free to own it would appear

to me better to give him no title but 'Sir,' or 'Mr. President,' than to

put him on a level with a governor of Bermuda, or one of his own

ambassadors, or a governor of any one of our States."

Thereupon the question went to a conference committee of both houses,

who reported that no other title would be proper for either President or

Vice-President, at any time, than those which were given by the

Constitution. To this report the Senate disagreed and appointed a new

committee. This proposed that the President should be called "His

Highness the President of the United States and Protector of their

Liberties." When wise men are absurd they presume on their prerogative.

The Senate accepted the report, but the House had the good sense to

reject it, consenting, however, to leave the question in abeyance. On

these proceedings Mr. Madison thus commented in a letter to Jefferson:--

"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 suggested it. Had this been true, Madison

would have been certain to know it, and he was quite incapable of

asserting in that case that such a title would have been to the

President "a severe dilemma." About Mr. Adams he was perhaps mistaken,

as he might easily have been, since he was not a member of the Senate,

and probably heard only a confused report of how the question was

brought before that body. As Mr. Adams's letter, quoted just now, shows,

he regarded the charge as a calumny and resented it. He gave them,

according to his own statement, no other opinion than that he preferred

"Sir," or "Mr. President," as a more proper address than "Excellency," a

title then, as now, pertaining to governors of States. He probably took

no further part in the debate, but it is not impossible that he may in

private have avowed a preference for some other and higher title than

either "Mr. President" or "Your Excellency." "For," he said in the

explanatory letter to his friend, "I freely own that I think decent and

moderate titles, as distinctions of offices, are not only harmless, but

useful in society; and that in this country, where I know them to be

prized by the people as well as their magistrates as highly as by any

people or any magistrates in the world, I should think some distinction

between the magistrates of the national government and those of the

state governments proper." A distinction might be proper enough if there

were to be any titles whatever; but certainly they were the wiser who

preferred good homespun to threadbare old clothes. Had rags of that sort

been made a legal uniform, it is almost appalling to reflect upon the

absurdities to which the national fondness for titles would have carried

us.

From March 4 to April 1, though the House of Representatives met daily,

there were not members enough present to make a quorum. The first real

business brought before the House, except that relating to its

organization, was introduced by Madison, two days after the

inauguration. It was a proposition to raise a revenue by duties on

imports, and by a tonnage duty on all vessels, American and foreign,

bringing goods, wares, or merchandise into the United States. The

essential weakness of the late Confederacy was, first of all, to be

remedied by uniform rules for the regulation of trade. Revenue must be

provided for the support of government, and that in a way which should

not be oppressive to the people. Commerce, Mr. Madison said, "ought to

be as free as the policy of nations will admit," but government must be

supported, and taxes the least burdensome and most easily collected are

those derived from duties on imports. He agreed, however, as he said on

the second day of the debate, with those who would so adjust the duties

on foreign goods as to protect the "infant manufactories" of the

country. With little interruption this subject was debated for the first

six weeks of the opening session of the First Congress. No other could

have been hit upon to test so thoroughly the strength of the new bond

of union. It was to brush aside all those trade regulations in the

several States which each had hitherto thought essential to its

prosperity. Every interest in the country was to be considered, and

their different, sometimes opposing, claims to be reconciled.

New England was sure that, should the tax on molasses be too high, the

distilleries would be shut up, and a great New England industry

destroyed. Nor would the injury stop there. The fisheries, as well as

the distilleries, would be ruined. For three fifths of the fish put up

for the West Indies could find no market anywhere else; and a market

existed there only because molasses was taken in exchange. A prohibitory

duty on that article, or a duty that should seriously interfere with its

importation, would wellnigh destroy the fisheries. What then would

become of the nursery of American seamen? With no seamen there would be

no shipbuilding. What sadder picture than this of a New England without

rum, without codfish, without seamen, and without ships! One can easily

conceive that even in that restrained and dignified First Congress there

was no want of serious and alarmed expostulation, and even some

threatening talk from such men as the tranquil Goodhue, the thoughtful

and scholarly Ames, and the impulsive Gerry.

Then the South, for her part, was alarmed lest, among other things, too

high a tonnage duty should leave her tobacco, her rice and indigo,

rotting in the fields and warehouses for want of ships to take them to

market. She had no ships of her own and could have none, and she invited

the ships of the rest of the world to come for her products and bring in

return all she needed for her own consumption. The picture of the

possible ruin of New England was as nothing to that of the Southern

planter scanning the horizon with weary eyes in vain for the sight of a

sail, while behind him was a dangerous crowd of hungry blacks with

nothing to do. That desolation seemed complete to the southernmost

States when it was also proposed to levy a tax of ten dollars upon every

slave imported. In short, the whole subject bristled with difficulties.

The problem was nothing more nor less than how to tax everything, and at

the same time convince everybody that the scheme was for the general

good, while nobody's special interests were sacrificed. The "infant

industries," to which Mr. Madison alluded, really received no special

consideration in the final adjustment, and they were too feeble then

even to cry for nursing. They have grown stronger since, though they are

"infants" still; and they should never cease to be grateful to him who,

however unwittingly, gave them a name to live by for a hundred years.

But the most remarkable part of the debate was that upon the proposition

of Mr. Parker of Virginia to impose a duty upon the importation of

slaves. Could the progress of events have been foreseen, that proposal

might have been regarded as meant to protect an "infant industry" of the

northernmost slave States. But the wildest imagination then could not

conceive of the domestic slave trade of a few years later, when a chief

source of the prosperity of Virginia would be her perennial crop of

young men and women to be shipped for New Orleans and a market. But Mr.

Parker had no ulterior motive when he avowed his regret that the

Constitution had failed to prohibit the importation of slaves from

Africa, and hoped that the duty he proposed would prevent, in some

degree, a traffic which he pronounced "irrational and inhuman." It would

have been difficult to have found a Virginian of that day who would not

have taken down his shotgun on hearing that there were miscreants

prowling about his kitchen doors in the hope of buying up the strongest

young people of his household for export to the Southwest.

Judging from the imperfect report of the debate upon the subject, it

would seem that the bargain relative to the slave trade, made in the

Constitutional Convention of two years before between New England and

the two southernmost States, might still hold good. Or there may have

been a new bargain; or, perhaps, both sides trusted to a tacit

recognition of the eternal fitness of things, and made common cause

where legislation threatened at the same time the distillery and the

slave-ship.[11] At any rate, the extreme Southerners expressed surprise

at the audacity which would disturb a compromise of the Constitution;

the extreme Northerners deprecated it as quite uncalled for in any

consideration of the subject of revenue. The principle of Mr. Parker's

motion, Mr. Sherman of Connecticut thought, was to correct a moral evil;

the principle of the bill before the House was to raise a revenue. At

some other time he would be willing to consider the question of taxing

the importation of negroes on the ground of humanity and policy; but it

was a sufficient reason with him for not admitting it as an object of

revenue that the burden would fall upon two States only. Fisher Ames of

Massachusetts could only take counsel of his conscience. From his soul,

he said, he detested slavery; and--forgetting, apparently, that this

tax was provided for by the Constitution--he doubted whether imposing it

"would not have the appearance of authorizing the practice" of trading

in slaves. This was his reason for wishing to postpone the subject. But

Mr. Livermore of New Hampshire was more ingenious still. If the imported

negroes were goods, wares, or merchandise, they would come within the

title of the bill, and be taxed under the general rule of five per

centum, which would be about the same rate as ten dollars a head; but if

they were not goods, wares, or merchandise, then such importation could

not properly be included in the consideration of the question of a

revenue from duties on such articles of trade.

Mr. Madison came to the help of his colleague, and brushed aside the

sophistries of the New England allies of the slave traders. If there

were anything wanting in the title of the bill to cover this particular

duty, it was easy to add it. If the question was not one of taxation

because it was one of humanity, it would be quite as difficult to deal

with it under any other bill for levying a duty as under this. If the

tax seemed unjust because it bore heavily upon a single class, that

would be a good reason for remitting many taxes which there was no

hesitation in imposing. If ten dollars seemed a heavy duty, a little

calculation would show that it was only about the proposed _ad valorem_

duty of five per centum on most other importations. "It is to be

hoped," he added, "that by expressing a national disapprobation of this

trade we may destroy it, and save ourselves from reproaches, and our

posterity the imbecility ever attendant on a country filled with

slaves." "If there is any one point," he continued, "in which it is

clearly the policy of this nation, so far as we constitutionally can, to

vary the practice obtaining under some of the state governments, it is

this.... It is as much the interest of Georgia and South Carolina as of

any in the Union. Every addition they receive to their number of slaves

tends to weaken and render them less capable of self-defense.... It is a

necessary duty of the general government to protect every part of the

empire against danger, as well internal as external. Everything,

therefore, which tends to increase this danger, though it may be a local

affair, yet, if it involves national expense or safety, becomes of

concern to every part of the Union, and is a proper subject for the

consideration of those charged with the general administration of the

government." No Northern man, except Elbridge Gerry of Massachusetts,

supported this measure; and none from the Southern States, except three

of the Virginia members, with Madison leading. As the foreign slave

trade was protected in the Constitution for twenty years by a bargain

between the two southernmost States and New England, so now the same

influence staved off the imposition of the tax which was a part of the

consideration to be given for that constitutional protection of the

trade. It is not a creditable fact; but it is, nevertheless, a fact and

a representative one in the history of the United States. And it is to

Madison's great honor that he had neither part nor lot in it.

After six weeks of earnest debate, an amicable and satisfactory

agreement was made to impose a moderate duty upon pretty much everything

imported, except slaves from Africa. It was literally a tariff for

revenue; but it was a settlement that settled nothing definitely, except

that the provision of the Constitution for a tax of ten dollars on

imported slaves should be a dead letter. Thenceforth the policy of free

trade was established, so far as African slaves were concerned, till the

traffic was supposed to cease by constitutional limitation and Act of

Congress in 1808.[12]

The determination to protect the commercial interests of the country,

beyond the point of mere revenue, was more manifest in fixing the rate

of duty upon tonnage than in duties upon importations. It was generally

agreed, after much debate, that American commerce had better be in

American hands, and a difference of twenty cents a ton was made between

the tax upon domestic and that upon foreign ships, as a measure of

protection to American shipping. Mr. Madison proposed to make it still

larger, but the House would only agree to increase it to forty cents on

ships belonging to powers with which the United States had no treaties.

The Senate, however, refused to admit this distinction, and insisted

that all foreign ships should be subject to the same tonnage duty

without regard to existing treaties. The House assented, lest the bill

should be lost altogether. This proposed differential duty on foreign

vessels was as clearly aimed at Great Britain as if that power had been

named in the bill. Nor, indeed, was there any attempt at concealment;

for it was openly avowed that America had no formidable rival except the

English, who already largely controlled the commerce of the United

States. In the debates and in the final decision of the question is

shown clearly enough the difference of opinion and of feeling, which

soon made the dividing line between the two great parties of the first

quarter of a century under the Constitution. Nobody then foresaw how

bitter that difference of party was to be, nor what disastrous

consequences would follow it.

Mr. Madison was among the most zealous of those who insisted upon a

discrimination against Great Britain. He thought it should be made for

the dignity no less than for the interest of the United States. He had

no fear, he said, "of entering into a commercial warfare with that

nation." England, he believed, could do this country no harm by any

peaceful reprisals she could devise. She supplied the United States with

no article either of necessity or of luxury that the people of the

United States could not manufacture for themselves. He called those

"Anglicists" who did not agree with him, and who believed that it was in

the power of Great Britain to hinder or to help immensely the prosperity

of the United States. It was not of so much moment what America bought

of England as it was that England should consent to free trade with her

colonies; and on every account it was wiser to conciliate than to defy

Great Britain; wiser to induce her to enter into a friendly commercial

alliance than to provoke her to retaliate upon the feeble commerce of

this country, upon which she had so strong a grip. Madison had shown

himself, before this time, half credulous of the charges of a leaning

toward England, and toward monarchy, made by those who wanted a congress

of petty states against those who wanted a strong national government.

If, however, there were Anglicism on one side, so there was quite as

much Gallicism, if not a good deal more, on the other. In writing to

Jefferson of the probability that the Senate would make no

discrimination in the tonnage duties, he said that in that case "Great

Britain will be quieted in the enjoyment of our trade as she may please

to regulate it, and France discouraged from her efforts at a competition

which it is not less our interest than hers to promote." Whatever may be

thought of this first concession of the new government to England, it is

quite as much the coming party leader as the statesman who speaks here.

It may not be doubted that he sincerely thought it to be, as he said,

"impolitic, in every view that can be taken of the subject, to put Great

Britain at once on the footing of the most favored nation." But the

relation of American interests to English interests was evidently

already associated in his mind with the relations of France and England,

so soon to be the absorbing question in American politics.

The impost act was followed by others hardly less important in putting

the new Constitution into operation under its first Congress. The

direction of business seems, by common consent, to have been intrusted

to Mr. Madison among the many able men of that body; doubtless because

of his thorough familiarity with the Constitution, and of his

methodical ways. He was sure to bring things forward in their due order,

to provide judiciously for the more immediate needs. The impost bill

secured the means to work with; the next necessity was to organize the

machinery to do the work. Resolutions to create the executive

departments of Foreign Affairs, of the Treasury, and of War were offered

by Mr. Madison. These were required in general terms by the

Constitution, with a single officer at the head of each, to be appointed

by the President "by and with the advice and consent of the Senate." The

manner of the appointment of subordinate officers was provided for by

the Constitution, but the manner of their removal from office was not.

Was the tenure of office to be good behavior? Were the incumbents

removable, with or without cause? If the power of removal existed, did

it vest in the power that appointed, that is, in the President and

Senate conjointly, or in the President alone?

As the Constitution was silent, the question had to be settled on its

own merits. With all the arguments that could be urged, either on one

side or the other, we are familiar enough in our time, coming up as the

question so often does in changes in state constitutions and municipal

charters, and in the discussion of the necessity for civil service

reform. There is this essential difference, however, between now and

then: we know the mischiefs that come from the power of official

removal, which were then only dimly apprehended. The power of removal

from office belonged, Mr. Madison believed, rightfully to the chief

magistrate, and, if by some unhappy chance the wrong man should find his

way to that position and abuse the power intrusted to him, "the wanton

removal of meritorious officers would," he said, "subject the President

to impeachment and removal from his own high trust."

Lofty political principles like these may still be found in the

platforms of modern political parties,--

"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.

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 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 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 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 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.

FOOTNOTES:

[Footnote 11: Eleven years afterward, when the question of prohibiting

the carrying on the slave trade from American ports came up, one John

Brown of Rhode Island said in Congress, "Our distilleries and

manufactories were all lying idle for want of an extended commerce. He

had been well informed that on those coasts [African] New England rum

was much preferred to the best Jamaica spirits, and would fetch a better

price. Why should it not be sent there, and a profitable return be made?

Why should a heavy fine and imprisonment [of slave traders] be made the

penalty for carrying on a trade so advantageous?" Sixty years later

still, there was another Brown in Providence, Rhode Island, who was a

member of the Committee of the Kansas Aid Society of New England. He was

about to withdraw from it for want of time to attend to its

duties,--had, indeed, actually sent in his resignation,--when news came

of the doings of another John Brown at Harper's Ferry. The resignation

was instantly recalled, with the remark that it was not a time for

Browns to seem to be backward on the question of slavery. Such is the

irony of coincidence in names.]

[Footnote 12: The subsequent legislation on this subject is a curious

exemplification of the ingenuity with which any law obnoxious to the

owners of slaves was got rid of, when it was clear that it could not be

defeated by force of numbers. In 1806 a final attempt was made to impose

the duty of ten dollars upon slaves imported, and a resolution passed in

favor of it. This was referred to a committee, with instructions to

bring in a bill. A bill was reported and pushed so far as a third

reading, when it was recommitted, which put it off for a year. When it

next appeared it was a bill for the prohibition of the importation of

slaves, in accordance with the constitutional provision that the traffic

should cease in 1808. The new question, after some debate, in which

there was no allusion to the tax, was postponed for further

consideration. But it never again came before the House. A month later,

February 13, 1807, a bill from the Senate, providing that the foreign

slave trade should cease on the first day of the following January, was

received and immediately concurred in, and that seems to have been

silently accepted as disposing of the whole subject. No tax was ever

paid; but the importation of slaves, notwithstanding the law to put an

end to importation in 1808, continued at the rate, it was estimated, of

about fifteen thousand a year. Probably it never ceased altogether till

the beginning of the rebellion of 1860.]

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