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



IN CONGRESS 31

Philadelphia already had a fair public library

the member who was armed at all points must
have equipped himself before entering Congress.
In this respect Madison probably had no equal,
except Hamilton, and possibly Ellsworth. To the
need of such a library, however, he and others
were not insensible. As chairman of a committee
he reported a list of books "proper for the use
of Congress," and advised their purchase. The
report declared that certain authorities upon inter-
national law, treaties, negotiations, and other ques-
tions 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 embar-
rassed him in the satisfactory discharge of his duty
as a legislator. The earliest distinction he won
after entering Congress was as chairman of a
committee to enforce upon Mr. Jay, then minister
to Spain, the instructions to adhere tenaciously to
the right of navigation on the Mississippi in his
negotiations for an alliance with that power. Mr.
Madison, in his dispatch, maintained the American
side of the question with a force and clearness to
which no subsequent discussion of the subject ever
added anything. He left nothing unsaid that
could be said to sustain the right either on the
ground of expediency, of national comity, or of
international law; and his arguments were not
only in accordance with his own convictions, but



32 JAMES MADISON

witli the instructions of tlie Assembly of his own
State. It was a question of deep interest to Vir-
ginia, 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 w^iile the British troops were in
j)ossession of those States or parts of them, they
might be compelled to remain as British territory
under the application of the rule of uti 2)ossidetis,
It was urged, therefore, that the right to the
Mississippi should be surrendered to Spain, if it
w^re made the condition of an alliance. In defer-
ence 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 rej^resentatives
must implicitly obey the instructions of their con-
stituents. He yielded ; but not till he had ap-
pealed 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



IN CONGRESS 33

position. New instructions were again sent to her
representatives, and Mr. Jay was once more ad-
vised by Congress that on the Mississippi ques-
tion his government woukl yiekl nothing.

On another question, two years afterward, Mr.
Madison refused to accei3t a position of inconsist-
ency 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 settle-
ment 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
settleaient. Congress had proposed in 1781 a tax
upon imports, each State to appoint its own col-
lectors, 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 con-
tinue obstinate on this point was more than prob-
able ; and the only hope of moving her was that
she should be shamed or persuaded into compli-
ance by the combined influence of all the other
States.

Mr. Madison was as bitter as he could ever be
in his reflections upon that State, whose course.



34 JAMES MADISON

he tliouglit, showed a want of any sense of honor
or of patriotism. Virginia, he argued, should re-
buke 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 car-
rying it the most hopeful ; when a committee ap-
pointed by Congress had already started on their
journey northward to expostulate with, and if pos-
sible conciliate, Rhode Island, — at that critical
moment came news from Virginia that she had
revoked her assent of a previous session to the im-
post law. This was equivalent to instructing her
delegates in Congress to oppose any such measure.
The situation was an awkward one for a represent-
ative 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 neces-
sity of a general law to provide a revenue, though
his arguments were no longer pointed with the
selfishness and w^ant of patriotism shown by the
people of Rhode Island. In the end his firmness
w^as justified by Virginia, who again shifted her
position when the new act was submitted to her.

The operation of the law was limited to five and
twenty years. This Hamilton opposed and Madi-



IN CONGRESS 35

son supported; and in this difference some of
the biographers of both see the foreshadowing of
future parties. But it is more likely that neither
of those statesmen thought of their difference of
opinion as difference of principle. The question
was, whether anything could be gained by a defer-
ence 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 Revolu-
tion. 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 neces-
sary 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.



36 JAMES MADISON

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 some-
thing 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 them-
selves into thirteen separate and independent gov-
ernments. 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 in-
duce the legislature of his own State to ratify it.
It was the law against his better judgment ; but



IN CONGRESS 37

being the law, he did his best to secure its recogni-
tion. But it failed of hearty support in most of
the States, while in New York and Pennsylvania
compliance with it was absolutely refused. No-
thing, therefore, would have been lost had Hamil-
ton'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 gov-
ernment under a new federal Constitution was pos-
sible. Meanwhile Congress borrowed the money
to pay the interest on money already borrowed ;
the confederate government floundered deeper
and deeper into inextricable difficulties ; the thir-
teen 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 Con-
stitution 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 Confedera-
tion required that " all charges of war and all
other expenses that shall be incurred for the com-
mon defense or general welfare " should be borne
by the States in proportion to the value of their
lands. It was proposed to amend this provision



38 JAMES MADISON

of the Constitution, and for lands substitute popu-
lation, 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 ne-
gro slaves which, evolved from some tender and
sentimental conscience, came into use at this pe-
riod. Should these, recognized only as property
by state law, be counted as 750,000 persons by
the laws of the United States ? ^ Or should they,
in the enumeration of population, be reckoned, in
accordance with the civil law, as 2^^o niillis^ i:tro
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 w^hite 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 in-
sisted 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

1 In some of the States slaves were reckoned as '" chattels per-
sonal ; " in others as "â–  real estate."



IN CONGRESS 39

a basis of representation, then that enumeration
should also be taken to fix the rate of taxation.

Here, at any rate, was a basis for an interesting
deadlock. One simple way out of it would have
been to insist upon the doctrine of the civil law ;
to count the slaves only as iiro quadriipedihus^ 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 huns:
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 alli-
ances 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 conces-
sion.

The curious student of history, however, who
loves to study those problems of what might have
happened if events that did not hapj^en had come
to pass, will find ample room for speculation in
the possibilities of this one. Had there been no
compromise, it is as easy to see now, as it was easy



40 JAMES MADISON

to foresee then, how quickly the feeble bond of
union would have snapped asunder. But never-
theless, 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 Con-
federacy 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 post-
poned 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 rap-
idly exceeding the demand. There can hardly be
a doubt that, in case of the dissolution of the Con-
federacy, 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



IN CONGRESS 41

respectable among the nations, as one purchased
by compromises with slavery, followed, as those
compromises were, by three quarters of a century
of bitter political strife ending in a civil war.

But the Northern members were no less ready to
make compromises than Southern members were
to insist upon them, these no more understanding
what they conceded than those understood what
they gained ; for the future was equally concealed
from both. A committee reported that two blacks
should be rated as one free man. This was un-
satisfactory. 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 sincer-
ity of his professions of liberality," — and doubt-
less 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 re-
newed the proposition, and it was carried, Mad-
ison says, " without opposition." i The law on this
point was the precedent for the mischievous three
fifths rule of the Constitution adopted four years
later.

1 J. C. Hamilton says, in his History of the Fepublic, that " the
motion prevailed by a vote of all the States excepting- Massachu-
setts 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 con-
sidered a meritorious action, to Madison.



42 JAMES MADISON

Youtli 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 rats, it was his un-
happy 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 en^ao-ed. 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



IN CONGRESS 4a

solemn statesman whom the old general so ap-
proved 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, discuss-
ing, 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 harpsi-
chord, 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 l)efore long by the dismissal of the older lover,
much to the father's disappointment, and in due
time the young lady married the other suitor.
There is no reason that I know of for supposing
that she ever regretted that her more humble home
was in a rectory, when it might have been, in due
time, had she chosen differently, in the White
House at Washington, and that afterward she
might have lived, the remaining sixteen years of
her life, the honored wife of a revered ex-President.
Perhaps, however, she smiled in those later years
at the recollection of having laughed in her gay
and thoughtless youth at her solemn lover, and
that, when at last she dismissed him, she sealed her



44 JAMES MADISON

letter — conveying to Mm alone, it may be, some
merry but mischievous meaning — with a bit of
rye-dough.^

Mr. Rives gives a letter from Jefferson to Madi-
son 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 pos-
sess many within yourself. Firmness of mind and
imintermitting 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.

1 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
Nieoll Floyd, Esq., of Moriches, Long Island, a great-grandson of
General William Floyd.



CHAPTER IV

IN THE STATE ASSEMBLY

As the election of the same deleojate to Cons:ress
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
caU 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



46 . JAMES MADISON

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 Vir-
ginia 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 com-
ing in or products going out, if the State objected.
As a member of Congress, Mr. Madison might pro-
pose 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 sink-
ing 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 representa-
tives 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 amend-
ment to the Articles of Confederation proposed at
the late session of Congress, which substituted
population for a land valuation as the basis of rep-
resentation and of taxation. The Assembly also
asserted that all requisitions upon the States for



IN THE STATE ASSEMBLY 47

the support of the general government and to pro-
vide for the public debt should be complied with,
and payment of balances on old accounts should
be enforced ; and it assented to the recommenda-
tion of Congress that that body should have power