right to the Mississippi for a quarter of a century.
But it was also speedily made plain by various
parliamentary motions that the seven votes, which
the friends of such a treaty had relied upon, had
fallen from seven — even could that number in
the end have been of use — to, at best, four. The
New Jersey delegates had been instructed not to
consent to the surrender of the American right to
the use of the Mississippi ; a new delegate from
Pennsylvania had changed the vote of that State ;
and Rhode Island had also gone over to the other
side. *'It was considered, on the whole," wrote
Madison, " that the project for shutting the Mis-
sissippi was at an end."

These details are not unimportant. Forty-five



PUBLIC DISTURBANCES AND ANXIETIES 81

years afterward Madison wrote that " his main ob-
ject, in returning to Congress at this time, was to
bring about, if possible, the canceling of Mr. Jay's
project for shutting the Mississippi." Probably it
had occurred to nobody then that within less than
twenty years the Province of Louisiana would
belong to the United States, when their right to
the navigation of the river could be no longer dis-
puted. But so long as both its banks from the
thirty-first degree of latitude southward to the
Gulf remained foreign territory, it was of the last
importance to the Southern States, whose territory
extended to the Mississippi, that the right of way
should not be surrendered. If a treaty with Spain
could be carried that gave up this right, and the
Southern States should be compelled to choose
between the loss of the Mississippi and the loss of
the Union, there could be little doubt as to what
their choice would be. It was not a question to
be postponed till after the Philadelphia Convention
had convened ; if not disposed of before, the con-
vention might as well not meet.

Madison's letters, while the question was pend-
ing, show great anxiety. He was glad to know
that the South was of one mind on this subject and
would not yield an inch. He was quite confident
that his own State would take the lead, as she soon
did, in the firm avowal of Southern opinion. But
he rejoiced that the question did not come up in
the Virginia legislature till after the act was passed
to send delegates to the Philadelphia Convention.



82 JAMES MADISON

That he looked upon as a point gained, and the
delegates were presently appointed ; but he still
despaired of any good coming of the convention,
unlass " Mr. Jay's project for shutting the Missis-
sippi " could be first got rid of.

In a recent work ^ Mr. Madison is represented
as having " struck a bargain " with the Kentucky
delegates to the Virginia Assembly, agreeing to
speak on behalf of a petition relating to the Missis-
sippi question, provided the delegates from Ken-
tucky — then a part of Virginia — would vote
for the representation of Virginia at Philadelphia.
A " bargain " implies an exchange of one thing
for another, and Madison had no convictions in
favor of closing the Mississippi to exchange for a
service rendered on behalf of a measure for which
he wished to secure votes. Moreover, no bargain
was necessary. It was not easy to find anybody
in Virginia who needed to be persuaded that the
right to the Mississippi must not be surrendered.
Madison wrote to Monroe in October, 1786, that
it would " be defended by the legislature with as
much zeal as could be wished. Indeed, the only
danger is that too much resentment may be in-
dulged by many against the federal councils." His
only apprehension was lest the Mississippi ques-
tion should come up in the Assembly before the
report from the Annapolis Convention should be
disposed of, for if that were accepted the aj)point-

1 A History of the People of the United States. Vol. i. By John
Bach McMaater.



PUBLIC DISTURBANCES AND ANXIETIES 83

ment of delegates to Philadelpliia was assured.
'' I hope," he wrote to Washington in November,
" the report will be called for before the business
of the Mississippi begins to ferment." It hap-
pened as he wished. " The recommendation from
Annapolis," he wrote again a week later, " in favor
of a general revision of the federal system was
unanimously agreed to" (the emphasis is his own).
He afterward reported to Jefferson " that the pro-
ject for bartering the Mississippi to Spain was
brought before the Assembly after the preceding
measure had been adopted." There was neither
delay nor difficulty in securing the unanimous con-
sent of the Assembly to resolutions instructing the
members of Congress to oppose any concession
to Spain. But Madison's anxiety was not in the
least relieved by the speedy appointment of del-
egates to the Philadelphia Convention; for, he
wrote presently to Washington, " I am entirely
convinced, from what I observe here (at Rich-
mond), that, unless the project of Congress can
be reversed, the hopes of carrying this State into
a proper federal system will be demolished." He
had already said, in the same letter, that the
resolutions on the Mississippi question had been
"agreed to unanimously in the House of Dele-
gates," and three days before the letter was
written the delegates to Philadelphia had been
appointed.



CHAPTER VII
THE CONSTITUTIONAL CONVENTION

Mr. Madison is called " the Father of the Con-
stitution." A paper written by him was laid before
his colleagues of Virginia, before the meeting of
the Constitutional Convention at Philadelphia,
and was made the basis of the " Virginia plan," as
it was called, out of which the Constitution was
evolved. In another way his name is so identified
with it that one cannot be forgotten so long as the
other is remembered. From that full and faith-
ful report of the proceedings of the convention, in
which his own part was so active and conspicuous,
we know most that we do or ever can know of the
perplexities and trials, the concessions and triumphs,
the acts of wisdom and the acts of weakness, of
that body of men whose coming together time has
shown to have been one of the important events
in the history of mankind.

Then it is also true that no man had worked
harder, perhaps none had worked so hard, to bring
the public mind to a serious consideration of affairs
and a recognition of the necessity of reorganizing
the government, if the States were to be held
together. Never, it seemed, had men better reason



THE CONSTITUTIONAL CONVENTION 85

to be satisfied with the result of their labors when,
a few months later, the new Constitution was
accepted by all the States. Yet the time was not
far distant when even Madison would be in doubt
as to the character of this new bond of union, and
as to what sort of government had been secured by
it. Nor till he had been dead near thirty years
was it to be determined what union under the
Constitution really meant ; nor till three quarters
of a century after the adoption of that instrument
was the more perfect union formed, justice estab-
lished, domestic tranquillity insured, the general
welfare promoted, and the blessings of liberty
secured to all the people, which by that great
charter it was intended, in 1787, to ordain and
establish. All the difficulties, which they who
framed it escaped by their work, were as nothing
to those which it entailed upon their descendants.

Two parties went into the convention. On one
point, of course, they were agreed, else they would
never have come together at ail, — that a united
government under the Articles of Confederation
was a failure, and, unless some remedy should be
speedily devised. States with common local inter-
ests would gravitate into separate and perhaps
antagonistic nationalities. But the differences be-
tween these two parties were radical, and for a
time seemed insurmountable. One proposed sim-
ply to repair the Articles of Confederation as they
might overhaul a machine that was out of gear;
the other proposed to form an altogether new Con-



86 JAMES MADISON

stitiition. One wanted a merely federal govern-
ment; not, however, meaning by that term what
the other party — soon, nevertheless, to be known
as Federalists — were striving for, but a confed-
eration of States, each independent of all the rest
and supreme in its own right, while consenting to
unite with the rest in a limited government for the
administration of certain common interests.^

This idea of the independence of the States was
a survival of the old colonial system, when each
colony under its distinct relation to the crown had
attained a growth of its own with its separate
interests. Each of these colonies had become a
State. The Revolution had secured to each, it was
maintained, a separate independence, achieved, it
was true, by united efforts, but not therefore bind-
ing them together as a single nation. It was held

^ Those who were zealous for state rights, and. opposed to a
central government, called the system they wished to reestablish
a Federal System, — ^ a confederacy of States. It was too conven-
ient and probably too popular a term to be lost, and the other
party adopted it when the new Constitution was formed. The
Federalist was the name chosen for the volume in which were
collected the papers, written first under the signature of " A Citi-
zen of New York," but afterward changed to " Publius," in sup-
port of the new Constitution, by Hamilton, Madison, and Jay. In
one of the earlier papers Mr. Hamilton refers to the Articles of
Confederation, which were to be superseded, as the Federal Con-
stitution ; but in the later papers Madison is careful to refer to
the proposed foma of government as the Federal Constitution,
and Federal soon came to be the distinguishing name of the party
which first came into power under the new Constitution. What-
ever may be said of Madison's other title, his right to that of
father of the Federal party can hardly be disputed.



THE CONSTITUTIONAL CONVENTION 87

as a legitimate result of that doctrine that each
State, not the people of the State, whether many
or few, should be represented by the same num-
ber of votes in a federal government as they were
under the Articles of Confederation, because such
a government was a union of States, not of a
people.

All men, it was argued, — going back to a state
of nature, — are equally free and independent ;
and when a government is formed every man has
an equal share by natural right in its formation
and in its subsequent conduct. While numbers
are few, every member of the State exercises his
individual right in person, and none can rightfully
do more than this, however wise, or powerful, or
rich he may be. But when government by the
whole body of the people becomes cumbersome
and inconvenient through increase of numbers,
the individual citizen loses none of his rights by
intrusting their exercise to representatives, in
choosing and instructing whom all have an equal
voice. So when States are united in a confederacy
each State has the same relation to that govern-
ment that individuals have to each other in a
single State. They are free and equal, and none
has a larger share of rights in the confederacy
because its people are more numerous, or because
it is richer or more powerful, than the rest. In
such a confederacy it is not the individual citizen
who is to be represented, but the individual State.
In such a confederacv there would be the same



88 JAMES MADISON

representation for a State, say of ten thousand
inhabitants, as for one of fifty thousand. This,
it was maintained, preserved equality of suffrage
in the equality of States ; while the representation
of the individual citizens of the States would be
in reality inequality of suffrage, because the au-
tonomy of the State would be lost sight of. If
in such a case it were asked what had become of
the rights which the majority of forty thousand
had inherited from nature, the answer was that
those rights were preserved and represented in
the state government. The difficulty, nevertheless,
remained : how to reconcile in practice this doc-
trine of the equal rights of States, where there
might be a minority of persons, with the actual
rights of the whole people where, according to the
underlying democratic doctrine, the good of the
whole must be decided by the larger number.

Those who proposed only to amend the old
Articles of Confederation, and opposed a new
Constitution, objected that a government formed
under such a Constitution would be not a federal
but a national government. Luther Martin said,
when he returned to Maryland, that the delegates
*' appeared totally to have forgot the business for
which we were sent. . . . We had not been sent
to form a government over the inhabitants of
America considered as individuals. . . . That the
system of government we were intrusted to pre-
pare was a government over these thirteen States,
but that In our proceedings we adopted principles



THE CONSTITUTIONAL CONVENTION 89

which would be right and proper only on the sup-
position that there were no state governments at
all, but that all the inhabitants of this extensive
continent were in their individual capacity, with-
out government, and in a state of nature." He
added that " in the whole system there was but
one federal feature, the appointment of the sena-
tors by the States in their sovereign capacity, that
is, by their legislatures, and the equality of suffrage
in that branch ; but it was said that this feature
was only federal in appearance."

The Senate, the second house as it was called in
the convention, was in part created, it is needless
to say, to meet, or rather in obedience to, reasoning
like this. There was almost nobody who would
have been willing to abandon the state govern-
ments, as there was next to nobody who wanted
a monarchy. "We were eternally troubled,"
Martin said, "with arguments and precedents
from the British government." He could not get
beyond the fixed notion that those whom he op-
posed were determined to establish " one general
government over this extensive continent, of a
monarchical nature." If he, and those who agreed
with him, sincerely believed this to be true, it
was natural enough that the frequent allusions
to British precedents, as wise rules for American
guidance in constructing a government, should be
looked upon as an unmistakable hankering after
lost flesh-pots. Should the state governments be
swept away, it might be that, in time of danger



90 JAMES MADISON

from without or of peril from internal dissensions,
the country, under " a government of a monarchical
nature," might drift back to its old allegiance. If
those who feared, or said they feared, this were
not quite sincere, the temptation was almost irre-
sistible to use such arguments to arouse popular
prejudice against political opponents. It is curi-
ous that Madison seemed quite unconscious of
how much the frequent allusions in his articles
in "The Federalist " to the British Constitution
might strengthen these accusations of the oppo-
sition ; while he half believed that the same thing
in others showed in them a leaning toward Eng-
land, from which he knew that he himself was
quite free.

The Luther Martin protestants were too radical
to remain in the convention to the end, when they
saw that such a confederacy as they wanted was
impossible. But there were not many who went
the length they did in believing that a strong cen-
tral government was necessarily the destruction
of the state governments. Still fewer w^ere those
who would have brought this about if they could.
That the rights of the States must be preserved
was the general opinion and determination, and it
was not difficult to do this by limiting the powers
of the higher government, or federal as it soon
came to be called, and by the organization of the
second house, the Senate, in which all the States
had an equal representation. The smaller States
were satisfied with this concession, and the larger



THE CONSTITUTIONAL CONVENTION 91

were willing to make it, not only for the sake of
the Union, but because of the just estimate in
which they held the rights belonging to all the
States alike. The real difficulty, as Madison said
in the debate on that question, and as he repeated
again and again after that question was settled,
was not between the larger and smaller States,
but between the North and the South ; between
those States that held slaves and those that had
none.

Slavery in the Constitution, which has given so
much trouble to the Abolitionists of this century,
and indeed to everybody else, gave quite as much
in the last century to those who put it there. Many
of the wisest and best men of the time. Southerners
as well as Northerners, and among them Madison,
were opposed to slavery. They could see little
good in it, hardly even any compensation for the
existence of a system so full of evil. There was
hardly a State in the Union at that time that had
not its emancipation society ; and there was hardly
a man of any eminence in the country who was
not an officer, or at least a member, of such a soci-
ety. Everywhere north of South Carolina, slavery
was looked upon as a misfortune which it was
exceedingly desirable to be free from at the earli-
est possible moment ; everywhere north of Mason
and Dixon's line, measures had already been taken,
or were certain soon to be taken, to put an end to
it ; and by the ordinance for the government of
all the territory north of the Ohio Kiver it was



92 JAMES MADISON

absolutely prohibited by Congress in the same year
in which the Constitutional Congress met.

But it was, nevertheless, a thing to the continued
existence of which the anti-slavery people of that
time could consent without any violation of con-
science. Bad as it was, unwise, wasteful, cruel, a
mockery of every pretense of respect for the rights
of man, they did not believe it to be absolutely
wicked. If they had so believed, let us hope they
would have washed their hands of it. As it was,
it was only a question of expediency whether, for
the sake of the Union, they should protect the sys-
tem of slavery, and give to the slaveholders, as
slaveholders, a certain degree of political power.
To refuse to admit a slaveholding State into the
Union did not occur, probably, to the most earnest
opponent of the system ; for that would have been
simply to say that there should be no Union. That
was what Madison meant in saying so repeatedly
that the real difficulty in the way was, not the dif-
ference between the large and the small States,
but the difference between the slaveholding and
the non-slaveholding States. If there could be
no conciliation on that point there could be no
Union.

Some hoped, perhaps, rather than believed, that
slavery was likely to disappear ere long at the
South as it was disappearing at the North. It is
an impeachment of their intelligence, however, to
suppose that they relied much upon any such hope.
The simple truth is that slavery was then, as it



THE CONSTITUTIONAL CONVENTION 93

continued to be for three quarters of a century
longer, the paramount interest of the South. To
withstand or disregard it was not merely difficult,
but was to brave immediate possible dangers and
sufferings, which are never voluntarily encoun-
tered except in obedience to the highest sense of
duty ; or to meet a necessity, from which there was
no manly way of escape. The sense of absolute
duty was wanting; the necessity, it was hoped,
might be avoided by concessions. It can only be
said for those who made them that they did not
see what fruitful seeds of future trouble they were
sowing in the Constitution.



CHAPTER VIII

"THE compromises"

The question with the North was, how far could
it yield ; with the South, how far could it encroach.
It turned mainly on representation, — on " the
unimportant anomaly," as Mr. George Ticknor
Curtis calls it in his " History of the Constitution,"
" of a representation of men without political rights
or social privileges." However much they differed
upon the subject in the convention, there was no-
body then and there who regarded the question as
" unimportant ; " nor was there a political event to
happen for the coming eighty years that it did not
influence and generally govern. There were some
who maintained at first that the slave population
should not be represented at all. Hamilton pro-
posed in the first days of the convention " that the
rights of suffrage in the national legislature ought
to be proportioned to the number of free inhabit-
ants." Madison was willing to concede this in
one branch of the legislature, provided that in the
representation in the other house the slaves were
counted as free inhabitants. The constitution of
the Senate subsequently disposed of that proposi-
tion.



"THE COMPROMISES" 95

But why should slaves be represented at all?
" They are not free agents," said Patterson, a dele-
gate to the convention from New Jersey; they
" have no personal liberty, no faculty of acquiring
property, but, on the contrary, are themselves
property, and, like other property, entirely at the
will of the master. Has a man in Virginia a
number of votes in proportion to the number of
his slaves? And if negroes are not represented
in the States to which they belong, why should
they be represented in the general government?
... If a meeting of the people was actually to
take place in a slave State, would the slaves vote ?
They would not. Why, then, should they be re-
presented in a federal government?" There could
be but one reply, but that was one which it would
not have been wise to make. It was slave property
that was to be represented, and this would not be
submitted to among slaveholders as against each
other, while yet they were a unit in insisting upon it
in a union with those who were not slaveholders.
Among themselves slavery needed no protection;
their safety was in equality. But to their great
interest every non-slaveholder was, in the nature
of things, an enemy ; and prudence required that
the power either to vote him down or to buy him
up should never be wanting. It was as much a
matter of instinct as of deliberation, for love of
life is the first law. The truth was covered up in
Madison's specious assertion that " every peculiar
interest, whether in any class of citizens or any



96 JAMES MADISON

description of States, ought to be secured as far
as possible." The only " peculiar " interest, how-
ever, belonging either to citizens or States, that
was imbedded in the Constitution, was slavery.

So AYilson of Pennsylvania asked : '' Are they
[the slaves] admitted as citizens — then why are
they not admitted on an equality with white citi-
zens ? Are they admitted as property — then why
is not other property admitted into the computa-
tion ? " He was willing, however, to concede that
it was a difficulty to be " overcome by the necessity
of compromise."

Never, probably, in the history of legislation,
was there a more serious question debated. Com-
promise is ordinarily understood to mean an
adjustment by mutual concessions, where there
are rights on both sides. Here it meant whether
the side which had no shadow of right whatever
to that which it demanded would consent to take
a little less than the whole. It was the kind of
compromise made between the bandit and his
victim when the former decides that he will not
put himself to the trouble of shooting the other,
and will even leave him his shirt. It was not
difficult to understand that horses and cattle could
be justly counted only where property was to be
the basis of representation. Yet the slaves, who
were counted, were, in the eye of the law, either
personal property or real estate, and were no
more represented as citizens than if they also had
gone upon all fours. Their enumeration, never-



"THE COMPROMISES" 97

theless, was carried, and it so increased the repre-
sentative power of their masters that inequality
of citizenship became the fundamental principle of
the government. This, of course, was to form an
oligarchy, not a democracy. Practically the gov-
ernment was put in the hands of a class, and
there it remained from the moment of the adoption
of the Constitution to the rebellion of 1860 ; while
that class, including those of so little consequence
as to own only a slave or two, in its best estate,
probably never exceeded ten per centum of the
whole people.

There was, if one may venture to say so, a
singular confusion in the minds of the venerable
fathers of the republic on this subject. They