James Madison: A Life Reconsidered (15 page)

No one in the country was regarded as wiser or more virtuous than Washington, as he himself well knew. He seemed to be inviting a nomination to serve at the Philadelphia convention, but when Madison presented it to him, he demurred, explaining that the convention was to meet in Philadelphia at about the same time as the Society of the Cincinnati, whose invitation he had already declined. Washington was president of the society, an organization of officers who had served in the Revolution, and he had at first been pleased to lead the group, but
because membership in it passed down to oldest sons, the organization was soon perceived as planting the seeds of a hereditary aristocracy. The Massachusetts legislature denounced it. Pamphleteers railed against it. And Washington, ever careful of his reputation, had decided to put some distance between himself and the Cincinnati by sending regrets for their Philadelphia meeting. This meant, he wrote to Madison, “that I could not appear at the same time and place on any other occasion.”
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Madison persisted, stressing the importance of the convention and pointing out that Washington’s name at the head of the Virginia delegation would help ensure that other states sent their most respected men. It was for these reasons that he had put Washington’s name forward, he explained, and he hoped that the general would seriously consider “whether the difficulties which you enumerate ought not to give way to them.” Perhaps aware of Washington’s concern that he might find himself at a gathering of delegates so unimpressive that their efforts would surely fail, Madison sent him the names of worthies who would be attending, men such as John Rutledge of South Carolina, a distinguished lawyer; Elbridge Gerry of Massachusetts, a signer of both the Declaration of Independence and the Articles of Confederation; and Alexander Hamilton, Washington’s brilliant and sometimes difficult protégé.
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Finally, a little more than a month before the convention was to begin, Washington yielded and said he would attend.

•   •   •

IN THE MIDDLE
of organizing the gathering in Philadelphia, Madison agreed to serve in Congress again. Although it would consume time he could scarcely spare, he saw the assignment as crucial to the convention’s success. Congress had still not acted on the report of the Annapolis Convention and had it in its power to create mischief. There was also the matter of John Jay, whom Congress had appointed its secretary of foreign affairs. Convinced now that war would ensue if the United States did not complete a treaty with Spain, Jay had managed to get Pennsylvania and six other states to the north to vote him authority to negotiate away U.S. rights to free navigation of the
Mississippi for twenty years. Madison not only still opposed the idea of giving up navigation rights on principle but understood the trouble that even proposing to do so could cause. It had already made Patrick Henry into “a cold advocate” of a stronger federal government, and others would follow if doubts grew about the central government’s dealing evenhandedly with all parts of the Republic.
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To southerners the offer to cede Mississippi navigation was an argument for a weaker rather than a stronger government.

Determined “to bring about, if possible, the cancelling of the project of Mr. Jay for shutting the Mississippi,” Madison set out in late January on a journey that took him across ice-clogged rivers and through a blizzard. “From Princeton to Paulus Hook we had a Northeast snowstorm incessantly in our teeth,” he wrote to Eliza Trist. In New York he found delegates to Congress much “divided and embarrassed” about the Philadelphia gathering. On February 21, New York, having received instructions from its legislature, moved to recommend a convention, but, as Madison recorded in his notes, “there was reason to believe” that New York’s “object was to obtain a new convention under the sanction of Congress rather than accede to the one on foot, or perhaps by dividing the plans of the states in their appointments to frustrate all of them.” Madison voted for the motion, nonetheless, noting that he had considered it “susceptible of amendment.” But with suspicions running high, it went down. A proposal from Massachusetts was next, and while it was subject to the same objections as New York’s, this time Madison’s idea of amending took hold, and the proposal was folded into plans for the Philadelphia convention. The resolution as it finally passed read, “That on the second Monday in May next a convention of delegates who shall have been appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation.” The resolution was more focused on the articles than the Annapolis Convention’s proposal had been, but if that troubled Madison, he gave no sign of it. In a letter to Edmund Pendleton, he expressed relief that it now looked as though the meeting would occur “and that it will be a pretty full one.” There was at least some hope for a situation that was growing increasingly dire.
“No money is paid into the public treasury,” he told Pendleton. “No respect is paid to the federal authority. Not a single state complies with the requisitions.”
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When it came to determining how far John Jay had progressed in his dealings with Spain, Madison found himself stymied by the veil of secrecy that Congress allowed Jay to draw around his negotiations. Thinking that even Spain’s minister to the United States might be more open, Madison arranged a meeting with Don Diego de Gardoqui on March 13. He found the Spanish diplomat inflexible, but in between threats about the consequences to America if it did not sign a treaty ceding its rights to navigation, Gardoqui let slip a crucial piece of information. He had not seen Jay for months, had no plans to meet with him, and would soon be returning to Spain. This meant no treaty agreement for the time being, and indeed other intelligence Madison picked up made it seem unlikely that there would ever be one based on forgoing navigation rights. The coalition that had voted to give Jay such authority was breaking up. New Jersey and Pennsylvania had reversed course and now saw open navigation on the river as in their interest. Even Rhode Island was showing signs of breaking with “the New England Standard.”
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But by now Patrick Henry had firmly announced he would not be a delegate to the Philadelphia convention, and lest the possibility of a treaty move others in a similar direction, Madison decided to nail up the treaty’s coffin. He did so by fiercely attacking the vote of the seven states as illegitimate. Treaties required nine votes under the Articles of Confederation, and it was quite obvious that instructions for negotiating a treaty ought to require the same. He also launched an assault on a rule forbidding the losing party to readdress the matter once decided. That amounted to trying to fetter the minority, Madison said, which in the case of the Mississippi, he pointedly reminded the assembled delegates, had been five states with another nearly voting with them. By the time he was through, Madison had called the legitimacy of Jay’s instructions into such doubt that it is easy to imagine Jay’s appetite for proceeding with negotiations declining rapidly, particularly since Madison had also made clear that even if a treaty ceding Mississippi navigation were agreed to, it was never going to get the nine votes necessary in Congress
for approval. Several months later, one of Madison’s congressional colleagues reported that the matter of the Mississippi was in “a state of absolute dormification.”
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•   •   •

MADISON WAS LIVING
in the boardinghouse of Vandine Elsworth on Maiden Lane, not far from New York’s city hall, where Congress met. The company was “agreeable,” he wrote to Eliza Trist, “but I almost hesitate in deciding that to be an advantage, as it may expose the unsocial plan I have formed to the greater reproach.” He wanted time “to revolve the subject which is to undergo the discussion of the convention,” and despite the temptations of pleasant company and the work he had to do in Congress, he found it. The product of hours spent in his room was “Vices of the Political System of the United States,” a document that neatly bookended his earlier survey of the flaws in other confederations and showed a different aspect of his genius. He was not only a scholar, as “Notes on Ancient and Modern Confederacies” had shown. He was also a man of experience who had seen the flaws he set forth—and most of them originated with the states. They failed to comply with congressional requisitions, they encroached on federal authority, and they trespassed on one another’s rights. No doubt remembering the Virginia legislature’s insistence on shielding Virginians from British creditors, he noted that states had violated international treaties, including the treaty of peace.
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In addition to vices that affected the states collectively, there were those found within them individually: the multiplicity, mutability, and injustices of their laws—which he had seen firsthand in the House of Delegates. The injustices of state laws, as Madison saw it, sometimes resulted from honest representatives falling under the sway of a “favorite leader” (and surely he was thinking of Patrick Henry) who varnished “his sophistical arguments with the glowing colors of popular eloquence.” Legislators themselves too often acted out of self-interest instead of for the public good. And, of course, those who elected them shared in the blame. They were given to uniting in majorities that violated the rights and interests of minorities. In his youth, Madison had seen the religious
majority in Virginia persecute members of a religious minority. More recently, he had watched states take actions that relieved debtors at the expense of a minority holding debt. Madison pointed to Rhode Island, which had not only issued fast-depreciating paper money but also passed laws forcing creditors to take it.
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Madison had thought long and deeply about majority rule. “There is no maxim in my opinion which is more liable to be misapplied and which therefore more needs elucidation than the current one that the interest of the majority is the political standard of right and wrong,” he had told Monroe.
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The matter of the Mississippi, in which he was involved at the same time he was writing “Vices of the Political System,” showed majority rule could result in an unfair decision in a federal as well as a state council. As Madison had carefully recorded, however, in the end the majority of seven states imposing a misguided policy came apart. Pennsylvania and states to its north covered such vast and varied territory that in the end their interests were too diverse for them to hold together.

The larger the arena for a decision, the example suggested, the safer is liberty—though such a notion was “contrary to the prevailing theory,” as Madison noted in “Vices of the Political System.” Since 1748, when Montesquieu had written
The Spirit of the Laws,
conventional wisdom had held that republics needed to be small or else they fell apart. But there was another way to look at it, as Madison was doing now: in an expansive republic, the rule of the majority was less likely to be oppressive, meliorated as it was by a greater diversity of interests.
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Madison had likely encountered the seed of this idea in David Hume’s “Idea of a Perfect Commonwealth,” published in 1752, but it might have been that when he saw the concept illustrated by the breakup of the northern coalition, he realized its power—and understood it could be more powerful still if instead of thirteen state legislatures clashing, the interests of millions of citizens could compete. He took this idea with him, like a pearl in his pocket, when he left New York on May 3 for the convention in Philadelphia.
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It was a theory on which a great nation could be built—a vast republic such as the world had never seen.

MADISON HAD BEEN IN PHILADELPHIA
more than a week when Washington made his dramatic entry. The general’s carriage was accompanied by Philadelphia’s City Troop, splendid in white breeches, high boots, and round black hats edged with silver. Church bells welcomed the hero of the Revolution, as did cheerful crowds along the way. Washington alighted from his carriage in front of Mrs. House’s, and although he did not stay there as he had planned—Robert Morris persuaded him to move into his grand house down the street—Madison knew that what truly mattered was Washington’s presence at the statehouse on the morrow.
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His shining reputation would cast a favorable light on the convention as nothing else could.

But the next day, May 14, when the convention was supposed to begin, Madison, Washington, and other members of the Virginia delegation arrived at the statehouse to find that Pennsylvania was so far the only other state represented. Travel was always uncertain in the eighteenth century, and it had been a wet spring, which meant that overflowing creeks and washed-out roads were causing delays for even the most intrepid travelers.

When after a week the convention had still not assembled a quorum, Washington grew impatient, but Madison was putting the time to good use, having the delegates from Virginia meet in daily conferences, where they formed what George Mason called “a proper correspondence of sentiments.” What Mason described in letters on May 20 and 21 as the intentions of “the principal states”—meaning Virginia and Pennsylvania—matched proposals that Madison had set forth in letters during previous months: “a total change of the federal system and instituting a great national council or parliament upon the principles of . . . proportionate representation”; a legislature of two branches empowered with “a negative upon all such [state] laws as they judge contrary to the principles and interest of the Union”; an executive, as well as a judiciary system, “with cognizance of all such matters as depend upon the law of nations.”
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By Friday, May 25, a majority of states had mustered a sufficient number of delegates, and the convention finally got under way. Twenty-nine of the fifty-five men who would eventually attend made their way through a spring downpour to the east chamber of the Pennsylvania State House. It was a handsome room, forty feet square and twenty feet high with tall, stately windows on two sides, and it resonated with history. Every delegate knew that within these walls the Declaration of Independence had been signed. Indeed, four men who had signed the declaration were present at the first meeting of the convention, and eventually four more would attend.

The delegates likely arranged themselves by state, with those from the North sitting in clusters on the north side of the room, those from the South on the south, and the others in between. When all the states sending delegates were represented, there would be only twelve such groupings, because Rhode Island declined to participate. The governor of the state later said that the legislature was fearful of breaking “the compact” established by the Articles of Confederation, lest “we must all be lost in a common ruin.” A less elevated explanation was the one Madison offered to his father: “Being conscious of the wickedness of the measures they are pursuing, they are afraid of everything that may become a control on them.”
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The first order of business was to elect a presiding officer. Washington was chosen unanimously, and as he moved, tall and commanding, to the low dais on the east wall of the chamber, it is hard to imagine the delegate who was not struck by the high importance of the work about to begin. The convention was an event charged with destiny, one that would “decide forever the fate of republican government,” Madison said, and he was determined to preserve the proceedings for future generations. From a seat front and center, he would write down “in terms legible and in abbreviations and marks intelligible to myself what was read from the chair or spoken by the members,” and at night he transcribed his notes, a project that was voluntary and arduous. He later said the work “almost killed him,” but his labors produced one of the most treasured records of American history.
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On the following Monday, the number of delegates increased to thirty-eight. Among those newly in attendance was Benjamin Franklin, “the greatest philosopher of the present age,” William Pierce, a delegate from Georgia, called him. Eighty-one now, white-haired, and “trunched,” according to one observer, he arrived in an enclosed sedan chair that he had brought home with him from Paris. Mounted on long, pliant poles and carried by four men, the chair provided a smoother ride than a carriage over Philadelphia’s cobblestoned streets, which was important to a man suffering from stones and gout. Franklin had missed the first day of the convention, possibly because of the rainy weather, but he might have chosen to be absent because his grandson William Temple Franklin was vying to be the convention’s secretary, in charge of keeping an official journal of proceedings. As much as his grandfather loved him, Temple, a self-absorbed dandy in his late twenties, was hard to like, and when the delegates voted on opening day, he lost badly to William Jackson of South Carolina.
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Perhaps Franklin, foreseeing the loss, wished to embarrass neither Temple nor himself nor his fellow delegates by being present.

The delegates adopted rules, including two that were to make give-and-take much easier than it would have been otherwise. The first reflected the fact that the delegates could not know at the outset the
details of their final plan. Proposals adopted early might need to be altered in the light of others accepted later. They needed to be able to go back and make changes, and so they voted that even though a decision on a matter had been made by a majority, it was possible to bring the issue up again. The second rule required secrecy, which meant that when a delegate changed his mind or decided to compromise, the world would not be able to accuse him of inconsistency. Jefferson, off in Paris, called the secrecy rule “abominable,” but Madison’s assessment from later years was probably correct. “No constitution would ever have been adopted by the convention if the debates had been public,” he said.
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•   •   •

WITH THE RULES
established, Washington recognized Edmund Randolph, the thirty-three-year-old governor of Virginia, who made clear in his pleasant voice that the plan he was proposing was not his but his state’s. In fact, it was mostly Madison’s. “Resolved,” Randolph said, as Madison began taking careful notes of his own proposals, “that the Articles of Confederation ought to be so corrected and enlarged as to accomplish the objects proposed by their institution; namely, ‘common defense, security of liberty, and general welfare.’”
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Randolph was a proponent of revising rather than replacing the articles, so this first resolution would have caused no surprise, but there must have been glances exchanged as he read on. Item two of Virginia’s plan, which provided for states to be represented in the legislative branch in proportion to either wealth or population, totally upended the articles, which gave each state an equal vote. Madison had likely added the first resolution to bring Randolph on board. Much as he liked him, Madison probably also suspected that Randolph would be untroubled by the inconsistency between article 1 and the rest of the plan and would confidently present both, although they pointed in opposite directions.
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But Gouverneur Morris of Pennsylvania, who supported a strong central government, was impatient with the ambiguity. Thirty-five years old and of commanding bearing despite the loss of a leg in a carriage accident, Morris was a fiercely charming man. Women were said to melt
at his glance, and the list of his amours was so long that John Jay, a man serious to the point of stuffiness, was moved to humor. “I am almost tempted to wish he had lost
something
else,” he quipped. On May 30, after the delegates had resolved themselves into the committee of the whole so that they could proceed less formally, Morris turned the force of his personality on Randolph and persuaded him to offer a substitute for the first resolution in order to make the Virginia Plan all of a piece. Randolph then proposed “that a national government ought to be established consisting of a supreme legislature, judiciary, and executive.”
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A stunned silence followed as delegates took in the implications of Randolph’s words. George Wythe of Virginia broke the spell to ask if “gentlemen are prepared to pass on the resolution.” Delegates jumped to their feet, one declaring that the resolution carried the convention beyond what Congress had mandated, another that it could abolish state governments and annihilate the confederation. Gouverneur Morris hammered home its necessity. Every community needed “one supreme power and one only,” and self-government would eventually fail if a central authority were not instituted. “We had better take a supreme government now,” he said, “than a despot twenty years hence—for come he must.” The delegates passed Randolph’s resolution and entered wholly new territory.
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They were no longer considering a revision of the Articles of Confederation; they were planning an entirely different form of government.

The monumental difficulty of that task was apparent as soon as delegates began to debate the Virginia Plan’s second item, the one providing for proportional representation in the national legislature. George Read of Delaware, one of the signers of the Declaration of Independence, rose to say that should the convention move away from the formula that gave each state an equal vote, his state’s delegates might find it “their duty to retire from the convention.” Madison pushed back, arguing that while equal representation for each state made sense in a confederacy, “it must cease when a national government was put into the place.” But so firmly did Read dig in his heels that delegates finally agreed to postpone consideration of the second article. Even as Madison
recorded the postponement, however, he remained confident that “the proposed change of representation would certainly be agreed to.”
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How could it be otherwise? It was both unjust and unreasonable for Delaware to have the same power in the general government as Virginia—which had nearly ten times the population.

There was quick agreement to article 3, which provided that the legislature would have two branches, but when delegates came to article 4, which provided for the first branch to be elected “by the people,” a major dispute broke out. Roger Sherman of Connecticut, an ungainly, square-jawed man with little education but a canny mind, declared that the people “should have as little to do as may be about the government. They want information and are constantly liable to be misled.” Elbridge Gerry of Massachusetts wholeheartedly agreed. A thin man of forty-two with pointed, birdlike features, Gerry had served in the Massachusetts legislature during the uprising of Daniel Shays and his rebels, and that experience had informed his opinion of popular rule. “The evils we experience flow from the excess of democracy,” he declared. “The people do not want virtue, but are the dupes of pretended patriots.” George Mason, on the other hand, his hair turned white now, believed popular election would be one of the glories of the new-modeled government. It would make the first branch of the legislature “the grand depository of the democratic principle.” Madison offered the image of a majestic edifice, declaring, “The great fabric to be raised would be more stable and durable if it should rest on the solid foundation of the people themselves.”
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The debate gave Madison the opportunity to advance the theory he had mulled over in New York. In jurisdictions as small as states, majorities had trampled on minority rights. “Debtors have defrauded their creditors,” he said. “The holders of one species of property have thrown a disproportion of taxes on the holders of another species.” The way to secure private rights and steady justice, he said, was to “enlarge the sphere and thereby divide the community into so great a number of interests and parties that in the first place a majority will not be likely at the same moment to have a common interest separate from that of the whole or of the minority; and in the second place, that in the case
they should have such an interest, they may not be apt to unite in the pursuit of it.” Having the people vote rather than the states would create a scale sufficient to counteract the injustices that “had more perhaps than anything else produced this convention.”
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When the question was called, delegates affirmed popular election of the first branch, but they stumbled over the method of electing the second. Delegates rejected the idea proposed in article 5 of the Virginia Plan for having the first branch choose the second out of persons nominated by individual legislatures and moved on without approving an alternative.

Article 6 contained a clause particularly important to Madison. It gave the national legislature the right “to negative all laws passed by the several states, contravening in the opinion of the national legislature the articles of union.” This wasn’t quite the “negative
in all cases whatsoever
” that he had advocated in letters written in March and April, but Madison must have run into resistance in preconvention meetings and so had placed some limits on the legislative veto over the states set forth in the Virginia Plan. Still, even modified, the negative amounted to a sweeping power, one Madison thought essential to controlling state governments. And so—for the moment—did the delegates. The measure passed “without debate or dissent.”
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The framework Madison had conceived for a new government was making fine progress—until June 7, when Delaware reentered the fray. Fifty-four-year-old John Dickinson, the delegation’s frail, scholarly leader, pressed the idea of having the second branch of the national legislature, now being called the Senate, appointed by state legislatures. This would ensure that even Delaware, the least populous state, would have a place. “Let our government be like that of the solar system,” Dickinson said. “Let the general government be the sun and the states the planets, repelled yet attracted, and the whole moving regularly and harmoniously in their respective orbits.”
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After no less a personage than George Mason expressed sympathy for Dickinson’s view, the proposal passed in the committee of the whole by a vote of 11 to 0. Madison failed to carry his own delegation, nor could the shrewd, bespectacled James Wilson, who had become Madison’s close ally, carry Pennsylvania.