for a limited period to control the trade with for-
eign 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 some-
thing 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 ma-
deira, 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
48 JAMES MADISON"
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
Pliiladelphia 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 hogs-
heads 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 shift-
less 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 compre-
hend 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
IN THE STATE ASSEMBLY 49
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 w^ould find out
whither they were going. Mr. Madison hoped to
change the wretched system of plantation com-
merce 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 salva-
tion for the Union. Not that this was the primary
object of those who favored this port law ; but the
50 . JAMES MADISON
question of commerce was the question on whicli
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 pre-
serving, the Union. Everything depended upon
reconciling these state interests by mutual conces-
sions. The South was jealous of the North, be-
cause 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 diffi-
culty 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 con-
sumer, went to a common place of exchange in
Philadelphia, New York, and Boston, and pro-
sperity 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
IN THE STATE ASSEMBLY 51
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
62 JAMES MADISON
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 Connec-
ticut 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 Poto-
mac was the boundary line between Virginia and
Maryland ; but Lord Baltimore's charter gave to
Maryland jurisdiction over the river to the Vir-
ginia bank ; and this right Virginia had recog-
nized, 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
IN THE STATE ASSEMBLY 53
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 uj^on 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 suggest-
ing that he should confer with the Maryland del-
egates 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 con-
versation." Why " they " should not have been
permitted to "consider it as originated" from
54 JAMES MADISON
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
w4io had proposed that each State should appoint
commissioners to look into the matter and apply a
remedy. So, also, so far as subsequent negotia-
tion 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 wdth 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 Poto-
mac 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 com-
missioners recommended. But wdien 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
IN THE STATE ASSEMBLY 65
months before. The work it proposed to do was
to make the upper Potomac navigable, and to con-
nect 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 im-
mediate. Pennsylvania and Delaware must neces-
sarily have a deep interest in both these projects,
and the Maryland legislature projiosed 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 Po-
tomac. 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 con-
vention to take up the whole question of American
commerce.
While this was going on in Maryland, the Vir-
ginia 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 coun-
try is in a most deplorable condition ; " that the
most " shameful frauds " were committed by the
English merchants upon those in Virginia, as well
56 JAMES MADISON"
as upon the planters who shipped their own to-
bacco ; 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 merchan-
dise here is, at least, as much above, as that of to-
bacco 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 sur-
render 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 reofulate trade with forei<?n 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 instruc-
tions to the delegates of the State in Congress to
labor for the consent of all the States to these pro-
positions. But in Committee of the Whole the
resolutions were so changed and qualified — espe-
cially 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. Madi-
IN THE STATE ASSEMBLY 57
son prepared a resolution, to be offered as a sub-
stitute, 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 con-
sider 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 Con-
gress, 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 con-
sideration. 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, proba-
58 JAMES MADISON
bly, wisli to ask for the concurrence of their neigh-
bors in any proposed arrangement. " So apt and
forcible an iUustration," 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 con-
tending 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 resolu-
tion 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
IN THE STATE ASSEMBLY 59
had gained tliat 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 follow-
ing 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 con-
vention.
On September 11 commissioners from Virginia,
Delaware, Pennsylvania, New Jersey, and New
York assembled at Annapolis. Others had been
appointed by North Carolina, Ehode Island, Mas-
sachusetts, 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 commis-
sioners " 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 con-
sideration 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 perma-
nent harmony." But New Jersey had gone far-
ther than this ; her delegates were instructed " to
consider how far an uniform system in their com-
mercial regulations and other important matters
60 JAMES MADISON
miglit be necessary to tlie common interest and
permanent harmony of the several States." This,
the commissioners present thought, " was an im-
provement 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 fol-
lowing May (1787), "to devise such further pro-
visions as shall appear to them necessary to render
the Constitution of the federal government ade-
quate 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.
CHAPTER V
IN THE VIRGINIA LEGISLATURE
That the Annapolis Convention ever met to
make smooth the way for the more important one
which came together eight months afterward and
framed a permanent Constitution for the United
States was unquestionably due to the persistence
and the political adroitness of Mr. Madison. But
it was not exceptional work. The same diligence
and devotion to public duty mark the whole of
this period of three years through which he con-
tinued a member of the state legislature. As
chairman of the judiciary committee he reduced
with much labor the old colonial statutes to a body
of laws befitting the condition of free citizens
in an independent State. From his first to his
last session he contended, though without success,
for the faith of treaties and the honest payment
of debts. The treaty with England provided that
there should be "no lawful impediment on either
side to the recovery of debts heretofore con-
tracted." The legislature notified Congress that
it should disregard this provision, on the plea
that in relation to *' slaves and other property "
it had not been observed by Great Britain. Mr.
62 JAMES MADISON
Madison did not tlien know tliat — as he said three
years later — " the infractions [of the treaty] on
the part of the United States preceded even the
violation on the other side in the instance of the
negroes." He maintained, nevertheless, that the
settlement of the difficulty, if it had any real
foundation, belonged to Congress, the party to the
treaty, and not to a State which had surrendered
the treaty-making power; and that in common
honesty one planter was not relieved from his
obligation to pay a London merchant for goods
and merchandise received before the war, because
other planters had not been paid for the negroes
and horses they had lost when the British troops
invaded Virginia. At each of the three sessions
of the legislature, while he was a member, he
tried to bring that body to adopt some line of
conduct which should not — to use his own words
— " extremely dishonor us and embarrass Con-
gress." It was useless; the repudiators were
quite deaf to any appeals either to their honor
or their patriotism.
On another question both he and his State were
more fortunate. Religious freedom had to be once
more fought for, and he was quick to come to the
defense of a right which had first called forth his
youthful enthusiasm. Two measures were brought
forward from session to session to secure for the
church the support of the state. The first was a
bill for the incorporation of religious societies;
but when it was pushed to its final passage it pro-
IN THE VIRGINIA LEGISLATURE 63
vicled for the incorporation of Episcopal diurclies
only. For this Mr. Madison consented to vote,
though with reluctance, in the hope that the church
party would be so far satisfied with this measure
as to abstain from pushing another which was still
more objectionable.
He was disappointed. Naturally those who had
carried their first point were the more, not the
less, anxious for further success. Now it was in-
sisted that there should be a universal tax "for
the support of teachers of the Christian religion."
The tax-payer was to be permitted to name the
religious society for the support of which he pre-
ferred to contribute. If he declined this volun-
tary acquiescence in the law, the money would be
used in aid of a school ; but from the tax itself
none were to be exempt on any pretext. Madison
was quick to see in such a law the possibility of
religious intolerance, of compulsory uniformity
enforced by the civil power, and of the suppres-
sion of any freedom of conscience or opinion.
The act did not define who were and who were
not " teachers of the Christian religion," and that
necessarily would be left to the courts to decide.
A state church would be the inevitable conse-
quence; for it was not to be supposed that any
dominant sect would rest till it secured the recog-
nition by law of its own denomination as the sole
representative of the Christian religion. To ex-
pect anything else was to ignore the teachings of
all history.
64 JAMES MADISON
The burden of opposition and debate fell, at